In Texas, anyone who mails abortion pills can now be sent to jail
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Speaking at Great Hills Baptist Church in Austin in September, Texas Gov. Greg Abbott, R, struck a jubilant - and defiant - tone.
Weeks after a near-total abortion ban went into effect in Texas, Abbott and other conservative lawmakers were there to herald another law intended to limit abortions. This time, they were taking aim at abortion pills.
The law banned prescribing medication abortions via telehealth and mailing the pills, and it also punished providers for doing so.
"Today is a celebration. It's a celebration of Texas values," Abbott said at the ceremonial signing on Sept. 24, according to the Texas Tribune.
He referenced the Biden administration's announcement earlier this year about potentially easing federal guidelines around dispensing abortion medication.
"We will not allow that in the Lone Star State," he said.
The law, known as S.B. 4, narrows the window in which providers can give abortion-inducing medication to seven weeks into a pregnancy - bucking U.S. Food and Drug Administration guidelines that allow the pills to be taken up until 70 days, or 10 weeks.
The law, which went into effect on Dec. 2, also bans prescribing abortion pills online or mailing them to recipients in the state. Providers who violate the law could face a penalty of jail time and fines up to $10,000.
As the Supreme Court continues to mull over the future of Texas's six-week abortion ban, the additional restrictions on medication-induced abortions are designed to curb an area that has been hard for lawmakers to monitor or regulate: self-managed abortions.
Self-managed abortions have played an increasingly important role in places that have sought to ban the surgical procedures, said Abigail Aiken, an associate professor of public affairs at the University of Texas at Austin who researches self-managed abortions.
"This bill is an attempt to try to impede that practice by creating a chilling effect," she said. "It's a concerted attempt to ban or restrict abortion in as many ways as possible."
Self-managed abortions are procedures that happen outside of a formal health-care setting. According to the Guttmacher Institute, a nonprofit research center that supports abortion rights, self-managed abortion via medication is one of the most viable and increasingly common ways to terminate a pregnancy. Worldwide, use of these pills is booming, with international organizations like Aid Access mailing the medication to other countries, including the United States.
Medication abortion is typically a two-step regimen that includes mifepristone and misoprostol, usually taken 48 hours apart. Under FDA guidelines, it can be taken up to 10 weeks gestation.
In recent years, abortion regulations in certain states have driven up the cost of surgical abortions and made them harder to access. In states like Mississippi, decades of strict regulations have caused all but one clinic to shutter. (The Supreme Court is reviewing the state's 15-week abortion ban, which aims to undermine or overturn the constitutional right to an abortion.)
But, Aiken said, "when you restrict abortion, the need for abortion care doesn't go away." For some, self-managed abortions are a direct response to the barriers conservative lawmakers have imposed on accessing brick-and-mortar abortion providers, she said. For others, she added, abortion pills have become the preferred way to end a pregnancy, allowing them to take care of their abortions on their own terms.
As in-person abortion care has become harder to access, abortion rights advocates have touted medication abortion as a safe, discreet and effective workaround for those seeking to manage their own abortions.
Currently, the FDA requires mifepristone to be given to patients under the supervision of a "certified prescriber" in a clinic, medical office or hospital. The American College of Gynecologists and Obstetricians, along with other members of the scientific and medical communities, have pushed back on this restriction, saying that rule is "not based on medical evidence or need" and creates unnecessary barriers to getting an abortion. The restriction has been temporarily eased for the duration of the pandemic, as more people resorted to telehealth services.
In May, Biden announced that the FDA would review the long-standing restrictions.
Medication abortions stand in stark contrast to how some people think of self-managed abortions, Aiken said. Over the years, many have come to associate self-managed abortions with self-harm or other violent means (the "coat-hanger" abortion is one particularly enduring example).
"They immediately think of something really dangerous and desperate. And it's not always the case," Aiken said. Criminalizing self-managed abortions also isn't new, she noted. While several states have laws against inducing your own abortion, they tend to be antiquated, dating back as far as the 1800s, said Aiken.
But there are present-day attempts to punish people according to those laws. In 2015, a Tennessee woman was charged with attempted first-degree murder for trying to end her pregnancy. She later pleaded guilty to "attempted procurement of a miscarriage." The people who are charged with these crimes are typically low-income and people of color, Aiken said.
Texas's law stops short of punishing the abortion seeker, instead levying fines and jail time on those who mail the medication. According to Aiken, this follows the state's pattern of creating a hostile climate for those who provide abortions or aid those who seek them.
"It's creating a climate of fear around helping others [get an abortion]," she said.
Texas's Heartbeat Act, which bans most abortions past six weeks, enables anyone in the country to sue anyone who helps a Texan get an abortion after that time frame. It was the first law of its kind.
With its new medication restrictions, Texas is looking ahead to a post-Roe America, antiabortion activists say.
John Seago, legislative director for Texas Right to Life, the state's largest and oldest antiabortion organization, told NPR that his organization wanted to give law enforcement the tools to prosecute those who help pregnant people avoid the state's strict regulations by managing their own abortions.
"This piece is really important for this period but also moving into the future, when we see even after [Roe v. Wade] we have organizations and individuals advertising that they will mail abortion-inducing drugs," he said.
It's unclear how the restrictions on telehealth and mailing abortion pills will be enforced, according to Aiken (opening or intercepting someone's mail without the addressee's permission is a federal crime). Despite this, she thinks it is possible that it will be replicated in other states.
But the law also points toward an increasingly polarized landscape for reproductive health in the United States - one that has been many years in the making, Aiken said.
Some states will move to "a new model of care," she added, where telemedicine opens up abortion access. If the FDA loosens its restrictions on abortion medication, some Americans could be able to pick up these pills at their local pharmacies.
But a ruling from the FDA "makes no difference" for states, including Texas, that are trying to preempt eased regulations. In those places, abortion could be illegal in the vast majority of cases, leaving those who want to end their pregnancies with few options: continue an unwanted pregnancy or take their abortions into their own hands.
"The laws we're seeing now, they definitely are the most intense that we've seen, but they are a continuation of the trajectory we've been on for the past decade," Aiken said. "Now, it's accelerating."
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