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Before spreading the word about how to get around state bans on abortion pills, Eliza Wells conducted something of a mock test using dried garbanzo beans.
Wells, co-founder of the nonprofit abortion advocacy website Plan C, is testing whether commercial mail-forwarding services can serve as a link in the clandestine supply chain from abortion-friendly states to states where the abortion pill is banned.
She and her colleagues put garbanzo beans into apothecary bottles to mimic the sound of the medicine in case a suspicious postal worker shook the package. The bean made it through without incident, and Plan C’s website now details how patients in abortion-ban states can use telehealth and mail-forward services to get pills.
Abortion bans have taken effect or are in the process of being implemented in 26 states since the Supreme Court struck down the constitutional right to abortion last month, sparking a fight by patients, lawyers and health care providers to continue services as local laws are developing rapidly. The most convenient method for people seeking early-term abortions is the drug, which can be prescribed online and sent unnoticed to the patient’s doorstep.
The overturning of Roe v. Wade draws more attention to the abortion pill, which has become one of the most affordable methods of abortion. (Video: The Washington Post)
The drugs – mifepristone and misoprostol – are approved by the Food and Drug Administration and can be taken up to 10 weeks into pregnancy. The Biden administration has said the drugs are approved as safe and effective for use in all 50 states. But remote providers can be subject to criminal investigations by local and state prosecutors, hit with civil lawsuits and lose their medical licenses if they break the rules by prescribing and delivering pills to people in states where abortion is illegal.
So the telehealth abortion services that emerged in response to the coronavirus pandemic and their activist allies are now looking for workarounds, some of which pose significant legal questions. Some advise patients to only drive across state lines to get their telehealth appointments and use out-of-state addresses to get pills in places where they are legal. This pushes everyone involved into legal gray areas.
“If you don’t follow the rules and act in good faith, you can get yourself into a lot of trouble,” said Diane Burke, a health attorney who specializes in licensing and regulations at the firm Mintz.
Public websites maintained by activists describe another strategy that stretches the legal envelope: using mail forwarding accounts with commercial delivery services. Such paid services are often used by people in the military or frequent travelers who want their mail delivered wherever they are at any given time.
So an abortion patient in Texas, for example, where abortion is prohibited, can set up a mail forwarding account in Colorado, where it is legal. The patient can then use the Colorado address to receive the shipment of abortion pills after consulting with a telehealth provider. The mail forwarding service will then ship the pills to the patient in Texas.
Some providers avoid asking direct questions about their patients’ location during the consultation, activists say, creating a layer of plausible deniability. All the patient needs is a shipping address in a state where abortion is legal. Addresses used with a mail forwarding service look like standard residential addresses, so there is nothing to indicate to the provider that the patient is using such a service.
“It’s don’t ask, don’t tell,” said Wells, whose Plan C website serves as a clearinghouse for information about the abortion pill from FDA-approved domestic sources as well as unauthorized foreign channels. Plan C received more than half a million Web page hits in the first few days after the Supreme Court decision, Wells said.
Telehealth providers are required to make “reasonable” efforts to make sure their patient is eligible to receive care, including being in a state where prescribing and obtaining abortion pills is legal, Burke said . But if a patient lies to the provider about their location, the provider may not be liable, she said.
“Forcing the patient to make sure they’re not using some workaround, going beyond what’s reasonable to enforce state laws, that’s not the provider’s job,” Burke said. On the other hand, “if it is patently obvious to the provider that these criteria are not met, you cannot provide services.”
A gap is opening between states on abortion pills and out-of-state care
A number of blue states, including Massachusetts and California, have passed rules that prevent state officials from cooperating with investigations launched by abortion-ban states. But this may not provide complete immunity from occupational consequences. Findings against a Massachusetts doctor practicing medicine without an Alabama medical license, for example, would still have to be reported to the Massachusetts Board of Medical Registration, Burke said.
“It will come back to haunt you in the state where you are properly licensed,” she said.
Anti-abortion politicians say strategies to circumvent state laws like those highlighted in Plan C should be met with stronger deterrents.
“This has to be stopped,” Alabama state representative Andrew Sorrell, who is sponsoring legislation to ban the pills, said in a text message to The Washington Post. “Put a fine and a criminal penalty on him and make it very risky to try.”
He said penalties and fines should be imposed on both shippers and patients.
So far, most state abortion bans do not criminalize patients who terminate pregnancies. Instead, they target doctors, nurses, midwives, activists and others who provide abortion care. Three states specifically ban “self-administered” abortions, which includes medication abortions: South Carolina, Oklahoma and Nevada, said Farah Diaz-Tello, senior counsel and legal director of If/When/How, an organization that advocates for abortion rights and maintains a legal hotline for women seeking advice on how to legally obtain an abortion.
Workarounds like mailing can put a patient in violation of criminal laws governing how prescription drugs are dispensed in general, but each state has its own set of rules, Burke said. Generally speaking, she said, “prescription fraud is a serious crime and is dealt with accordingly.”
From a practical standpoint, stemming the flow of pills can be difficult for government officials, partly because drugs are so common. Medical abortions account for 54 percent of all abortions in the United States in 2020, according to the Guttmacher Institute, an abortion rights nonprofit that tracks abortion laws. Since the Supreme Court’s 6-to-3 decision last month, telehealth providers say they’re constantly evaluating the map of what’s legal in which states, which changes almost daily.
“It’s really a quagmire to wade through,” said Melissa Grant, chief operating officer of nonprofit telehealth abortion provider Carafem. Carafem says it won’t ship abortion pills to addresses in states where abortions are banned, and it also doesn’t allow mailings if it learns a patient is using such a system.
On its website, Carafem asks new patients to click on one of the 14 states in which it legally offers services, indicating where they will be for their virtual appointment.
But Carafem does not attempt to digitally verify the location of patients during their consultation – for example, by using the unique IP address of the patient’s computer, which reveals the user’s general location.
“We’re a healthcare organization, not an IT vendor or a wizard,” Grant said.
Carafem encourages women from states with abortion bans and medication abortion bans to travel to the nearest state border where the pill is legal and park in a parking lot for their telehealth visit. because the Supreme Court ruling does not prevent women and other pregnant individuals from crossing state lines to obtain abortion services. To get the pills in the mail, patients can provide a friend’s address or a PO box in an abortion-friendly state, Grant said.
“We talked to people sitting in their office at work, in their restroom at school, in their car in the parking lot,” she said. When they receive their kit, Carafem patients also receive a heat pack to help with cramps and herbal and peppermint tea to soothe an upset stomach.
Telehealth abortions are a relatively new phenomenon. Although the FDA requires abortion pills to be dispensed under the supervision of a prescriber, it loosened some rules during the pandemic, allowing the drugs to be prescribed over the Internet and sent to patients by mail. President Biden told a meeting of governors last week that his administration is committed to keeping abortion drugs legal and available despite a Supreme Court ruling that gives states the right to ban abortions.
“If states try to block a woman from getting a drug that the FDA has already approved and that has been available for over 20 years, my administration will act and protect that woman’s right to that drug,” Biden said.
As the legal pendulum swings away from legal abortion, many telehealth providers do not explicitly ask patients where they are during the consultation; they ask patients to certify that they are in a legal state for an abortion on consent forms and online questionnaires, according to advocates and providers.
“We trust our patients when they tell us they need these services,” said Christy Pitney, a nurse-midwife and co-founder of Forward Midwifery, which is based in Washington, DC. If…
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