The abortion battles ahead

I’ve been saying for a while that overturning Roe would unleash at least two major areas of policy battles– medical abortions and considerations of what happens when crossing state lines.  Thus, I was quite pleased to see a nice article on exactly this in the Post:

The Supreme Court decision to strike down Roe v. Wade is expected to trigger new battles between states over abortion access, as women and advocates try to get around newly enacted bans by seeking the procedure out of state and using hard-to-trace medications.

The fights promise to raise tensions between states in ways not seen since the era of slavery, experts say.

Multiple states, including Arizona, Arkansas and Texas, have sought to stem the flow of abortion-inducing pills by making their shipment through the mail illegal. Republican lawmakers in Missouri are considering a bill that would prohibit Missouri residents from getting an abortion out of state as well as penalize out-of-state medical professionals. Model legislation recently released by the antiabortion Right to Life organization would make it a felony offense to help a minor obtain an abortion across state lines.

These steps by emboldened conservatives are raising concerns that cross-border investigations targeting abortion will test traditional law-enforcement cooperation among states…

The divergent approaches threaten to deepen regional divisions over abortion that had been somewhat muted by Supreme Court precedents that established abortion as a constitutional right.

“We haven’t seen this kind of battle about … the reach of the jurisdiction of one state over another in a very long time,” said Wendy Parmet, director of Northeastern University’s Center for Health Policy and Law. “Nothing of this magnitude have we seen since the Civil War.”

Republican-controlled states also are setting up potential constitutional showdowns by banning abortion pills, which directly conflicts with U.S. Food and Drug Administration approvals of the medications…

“Over the next few months it’s going to be total chaos. Every state has different laws at this point,” said Greer Donley, an assistant professor of law at University of Pittsburgh and co-author of a deep analysis of post-Roe legal issues. “Patients are going to be totally confused trying to figure out where to go. Clinics that remain open will be inundated by out of state travelers. It’s going to be a total, total mess.”

The relative ease of use of abortion pills and the ability to send them through the mail is making them a key focal point in the emerging legal battles.

A gray market in abortion pills is expected to expand, as advocates and patients arrange for hard-to-detect shipments to be sent via mail to states with abortion bans. More than half of abortions in the United States already are performed with the medications mifepristone and misoprostol, which are together referred to as the abortion pill. They must be used within the first 10 weeks of pregnancy. The pills can be obtained at abortion clinics but they have increasingly been sent through the U.S. Postal Service, especially as Republican states have passed legislation that have forced abortion clinics to close…

Still, even using telehealth links, physicians are limited to prescribing medicine in states where they are licensed to practice. That is prompting activists and patients to set up elaborate workarounds, where pills are first mailed by the provider to an address in an abortion-friendly state and then forwarded to the patient in an antiabortion state by a friend or relative.

Under emerging laws in states with abortion bans, such maneuvers could expose everyone in the supply chain to lawsuits, investigations and possible prosecution. Even providing information to patients on how to obtain the pills out of state could soon be illegal in some states, experts say.

Some states could treat abortion pills as contraband, banning their possession and considering them dangerous substances.

Where this all goes, nobody knows.  But I will fairly confidently predict that a number of very conservative state legislators will overplay their hand, pass some truly draconian laws that lead to some very bad, but sympathetic and media-friendly stories and that this will, in fact, set back the pro-life movement.  The problem is, there’s also going to be a fair amount of human suffering involved in that as well.

But, how these conservative states approach drugs through the mail and traveling across state lines for abortion are very much shaping up to be huge political battles.  

About Steve Greene
Professor of Political Science at NC State

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