A December 2021 decision from the Food and Drug Administration (FDA) to allow mailing abortion pills and the fallout from the US Supreme Court’s decision on June 24 to overturn Roe vs Wade are making the US Postal Service (USPS) a battleground for abortion access.
More than half of all abortions in the US are medication abortions—meaning they are induced by pills—according to the Guttmacher Institute, a pro-choice research group. Many of those pills are sent by mail following an online or telehealth consultation, making the USPS, a federal agency, among the main conduits for abortion access.
As some US states move to enforce bans on abortion, pills-by-mail will become a legal challenge as well as one of enforcement. While states can regulate access to health within their borders, they can’t regulate federal mail. And monitoring the contents of each of the millions of packages coursing through the national postal system is unrealistic in a post-pandemic world where healthcare has moved beyond brick-and-mortar clinics.
Unlike abortion clinics, which squared up against anti-abortion protesters for decades, the postal service will be a more difficult target. “You can’t protest every mailbox; you can’t create that type of regulatory regime,” Amanda Allen, senior counsel at the Lawyering Project, told Curbed last month. The USPS already struggles to control the flow of fentanyl, the highly controlled, deadly drug, through its postal system. It seems unlikely to have the capacity to stop abortion pills, which remain legal and federally approved, from showing up in the mail.
Several states have existing laws that attempt to limit access to abortion pills by telehealth and mail. So far, some states have required at least one in-person visit to a physician before obtaining a medication abortion. Others explicitly banned using telehealth for to receive abortion medication, including Texas, which signed a bill into law in September 2021.
Abortion telehealth services like Hey Jane, Just the Pill, and Choix send out abortion pills by mail in accordance with state laws. However, some tactics have emerged for women to circumvent abortion pills bans in their states. VPNs can be configured to disguise a user’s location. Friends in pro-choice states can receive pills in the mail from abortion providers, before forwarding them on to their friends in states with bans. Women can drive to a pick-up point just over the border in a pro-choice state to have a telehealth consultation, then receive the pills by mail a day or two later at a designated location. Others are ordering abortion pills online from abroad, including Mexico or Austria. While illegal, there is no mechanism to monitor orders from doctors and pharmacies overseas.
Just the Pill is planning to deploy a fleet of mobile clinics just inside the Colorado border to provide consultations and dispense pills to women from neighboring states that have implemented bans.
Lawsuits can also challenge state restrictions on access to abortion pills. So far, GenBioPro Inc., the manufacturer of an abortion drug called mifepristone, has filed a lawsuit against the state of Mississippi, arguing that federal approval for the drug overrides state laws. No decision on the lawsuit has been made yet.
In addition to the challenges in enforcing laws meant to limit medication abortions, the bans on abortion pills appear to be fueling demand. According to a study reported in Texas Monthly, before a September 2021 Texas law banning abortion pills by mail, the Austria-based organization Aid Access, which mails abortion pills to the US, received 11 requests from Texas a day. In the weeks after the law passed, requests exploded to 138 a day. That dynamic is repeating itself nationally. Over the weekend following the Supreme Court decision, abortion providers saw an increase in inquiries about stockpiling or accessing abortion pills.