Basically what the title says. Yes, I realize such pills are not an adequate substitute for Roe freedoms, but they would provide access to a good portion of women unfortunate enough to live in red states. I’m not aware of a state’s ability to restrain shipment of medicines through the mail (or private delivery).
Yeah - I know I should do my own research, but I thought some of you legal eagles might have the info or a link at your fingertips.
Thought GD might be a better place for this than GQ.
Delivering prescription medications through the mail is heavily regulated as part of the state’s authority to regulate the practice of pharmacy.
Of course, many (most? all?) “morning after” pills are available OTC. I think you generally able to mail OTC medications, subject to various packing and branding requirements.
The States have limited proactive authority to intercept mail at all. The Federal government and postal inspectors are allowed to open suspicious mailings (even without a warrant), a State government agent may be able to open specific pieces of mail but they would need a search warrant and probably some cooperation from the local postal inspectors. This would be cumbersome and more or less impossible to use effectively–they would have to suspect a specific woman of getting abortion medication. In theory if there was a specific return address known to be associated with the practice, they could get a warrant based on that, but I believe the organizations overseas that are currently mailing pills to American women take basic steps to make that difficult (i.e. it’s easy to have generic / untraceable return addresses.)
Now, the legal questions around this practice have a few different arenas:
Telemedicine / prescribing laws - Under the current jurisprudence which isn’t amazingly well fleshed out, the patients location is controlling for telemedicine regulations. This means that a Massachusetts doctor would be in violation of Texas law if he scheduled a telemedicine appointment with a Texas resident located in Texas, and since Texas law requires physical presence in Texas to prescribe he would be in violation of that law for prescribing medication through a telemedicine visit. Now, it looks like we’re going back to the pre-Civil War era where the States are going to stop cooperating on criminal investigations and procedures, as many blue states have either enacted laws or said they will enact laws which will end any assistance with anti-abortion State criminal investigations, including a refusal to extradite. But that is little real salve for the doctor. Physicians are professionals with a lot to lose, they likely are not going to risk a situation where if they ever set foot outside of Massachusetts they could potentially be arrested and extradited to Texas.
There is currently an assertion, put forth by AG Merrick Garland and others, that the two common drugs used in medication abortions are FDA approved, and that the States cannot ban drugs for medical purposes as that usurps the FDA’s authority. This has not been meaningfully litigated and likely will be. If Garland’s opinion proves itself out, then in theory you could get prescribed these drugs in an abortion ban State, but it would be fraught with legal peril because they will be attempting to prosecute anything related to these pills whatsoever, again–big risk. Additionally, Garland could be right in a limited but meaningless sense–it is potentially true that States cannot usurp FDA authority, which means a State cannot blanket ban mifepristone and misoprostol completely on safety grounds, because that interferes with Federal drug regulatory power. But they most likely can make it illegal to dispense that medication “for abortion purposes.” This would mean the only “legal” way for a woman in such a State to procure the medications would be a “wink and nod” situation where the doctor prescribes these pills for a different purpose, which again, if proven would actually not be legal.
There are two organizations overseas that are willing to ship these drugs to American addresses. Unlike the example of a Massachusetts doctor who likely has too much skin in the game, the people behind these organizations largely have nothing to fear from the United States. They are both based in the EU, and no EU country will even seriously countenance enforcing any American court orders against them or even helping with investigations or controlling the shipments. The Federal government could intervene to try and scan for the shipments, and likely would in a scenario where a Republican is President, but it would still be difficult to stop. The biggest barrier for these two organizations is very few American women know about them, they aren’t well marketed in the United States, and it is confusing and complicated to get in touch with them if you’re operating at an information deficit.
The two abortion drugs are Rx only in the US.
I did some googling, and those two drugs have a very limited use for conditions other than abortion. I predict that there will be an epidemic of these maladies and doctors will deem it necessary that women are prescribed these exact drugs.
Yes, there will be lawsuits. The heart of the situation would be patient-doctor confidentiality. The prosecutor probably won’t have a medical degree, so he or she would have no business questioning a legitimate prescription.
IMHO, health care is something between a patient and a physician. It is nobody else’s business.
~VOW
The OP asked about “day after pills.” I interpreted that to mean “Plan B” emergency contraception, which is not the same as abortion pills.
https://www.goodrx.com/conditions/emergency-contraceptive/is-plan-b-considered-abortion
I think a lot of people, perhaps including the OP, are unclear on the difference. If you have birth control pills, you may be able to take several at once to use as the morning-after-pill, aka emergency contraception, aka Plan B. This can prevent but not terminate a pregnancy. The abortion pill is a whole different thing.
Yes - I am ignorant as to the terminology, and did not intend to limit my question to “day after.” Instead, my question was prompted by having heard that a great percentage of abortions were chemically induced.
Apologies for my confusion.
So, just to clear it up, Plan B is, I believe, just a large dose of birth control pills. It will cause menstruation in person who isn’t pregnant, so it can prevent a fertilized egg from implanting.
The other abortion medication I know of is RU-486, which does induce an abortion.
It would be tricky to try and ban Plan B – presumably, someone who thinks their birth control failed could run out and get a script for BC pills, or ask a friend, or something. It doesn’t cause abortion anyway (that is, rejection of an implanted, fertilized egg). It would be a lot easier to ban RU-486 within a state, and out-of-state mail-order pharmacies may come with risks – you don’t know what you’re getting, from a pharmacy that is specifically willing to violate a state law.
Also, I think that RU-486 should be properly prescribed and the person taking it should have some monitoring, right?
It sounds like we could use a little medical clarity here:
The emergency contraception option, for those who can take medication shortly after the possible fertilization but before implantation of an embryo:
There’s an existing thread on the feasibility of abortion pills by mail for those living in states that outlaw abortion:
But it’s not as though conservatives aren’t gunning for emergency contraception as well. Or regular contraception, for that matter.
It does cause abortion according to the people saying “at conception”, and meaning by that when the egg and sperm combine. The egg is fertilized before it implants, and may have been fertilized before Plan B is taken.
Also, there’s a limited window of time in which abortion drugs will work, and shipping from overseas can take a significant amount of that time.
The “day after pill” is supposedly available OTC by going to a pharmacy and requesting it. Or by mail order. But you may not be able to get any.
I have to assume that the red states are going to try to make these very, very hard to get, in store at least. I don’t think any have - but it seems likely that’s next.
Once again, emergency contraception is not the abortion pill.
And that is a problem for some people, who DO view it as an abortion because it causes the death of a fertilized egg by that mechanism. They don’t have the same definition of pregnancy as you (or I) do. There are people out there who want to ban pill-based birth control precisely because it can be used in that manner.
Concur.
Plan B (over the counter) and similar (Ella? which is prescription) are designed to be taken within a couple of days after intercourse, and I gather they work by preventing the implantation of a fertilized egg.
The “abortion pill” (plural, as it’s two separate drugs) will stop an established pregnancy.
The question about mail order is valid for both types, of course.
Since there’s some interest in preventing even regular birth control from being available, I strongly suspect that states will try to find ways of making Plan B etc. a LOT harder to obtain, if they can do so without skirting Federal laws.
With USPS being Federal, I don’t know if states have the ability to interfere directly. I’m not sure how other carriers (UPS, FedEx etc.) fare in terms of being interfered with.
I do know states have some leeway on what drugs are available - supposedly codeine cough syrup is available without prescription in some states, for example.
I’ll put myself out there as willing to mail “gifts” to whomever needs them in a Red state. A routine package from a “friend” is less likely to get spotted than something from “Let’s Kill All Babies, Incorporated”. If the “friend” needs the actual abortion pills, I’d prefer that the doctor prescribe them in her name, of course.
Thinking on that further: what could a state do about THAT situation?
They might find ways ot intercepting the package, but they couldn’t really charge anyone with anything, right? If they tried to charge the recipient, that wouldn’t stick (though it would cause a lot of hassle) - the recipient could loudly proclaim she is not responsible for unsolicited junk she’s sent in the mail. And I’m in another state, where (presumably) the stuff I’m sending is illegal.
If I showed up in the red state, yeah, they might be able to try to charge me - but for a “crime” not committed in that state, and legal where it was “committed”. I’d just have to make a mental note to never visit that state ever again (which, hell, I won’t want to do anyway).
A wrinkle most probably don’t think of occurs to me:
Sure, decide never to visit a particular state ever again - let’s call it “T”. So you never drive to T, never intend to go there. Then you’re flying from, say, LA to Florida and en route your plane has to divert for some reason or other - emergency, mechanical problem, etc. It diverts to an airport in T.
You don’t have a choice here - suddenly you’re going to T. Now, I’m assuming you’re going to play it cool, say nothing, do your best to not be noticed. But now you find yourself in a state where you’re considered a wanted criminal. Awkward. Now, probably you’ll be OK and on your way shortly, but… it’s a situation where you’ve just wound up where you don’t want to be. If the authorities are alerted in any way you could find yourself arrested and charged.
Hah. Good point. I wonder if there’s any kind of online tool that lets one look up whether there’s an outstanding warrant for a person, somewhere. (note: to the best of my knowledge, I would not expect anything targeting me… having not yet needed to mail any “gifts” anywhere).