As the overturn of Roe v. Wade sparks conflict between states that wish to restrict abortion rights and states expanding those rights beyond their borders, abortion medications are in the crosshairs.
Abortion medications can be prescribed online and delivered to patients in the mail, which means that a physician doesn’t have to be in the same state, or the same country, as a patient seeking an abortion.
As Republican-led states, including Florida, impose more restrictive abortion laws, residents are looking to out-of-state organizations to provide the medications.
In response, some Republican legislators are cracking down on providers who deliver abortion pills across state lines.
A physician who mails the medication to a Louisiana resident could face up to 10 years in prison and a $75,000 fine. A new law in Tennessee makes distributing abortion pills through the mail a felony punishable by up to $50,000 in fines. And South Dakota Gov. Kristi Noem recently called for a special legislative session to craft new laws barring the practice.
A 2015 law prohibits Florida physicians from prescribing the medications without an in-person visit at least 24 hours in advance — effectively outlawing telehealth abortions.
The law only came into effect in April after a lengthy court battle. It’s not clear how, or if, state health officials can enforce the law on out-of-state physicians.
Nearly half of all abortions in Florida last year were performed using medication — among the highest rates in the country — according to federal health records. The treatment consists of two drugs taken over 48 hours: The first drug, mifepristone, terminates the pregnancy; and the second, misoprostol, helps the body expel it.
U.S. Attorney General Merrick Garland said last week that the Justice Department will protect telehealth providers who prescribe abortion medication across state lines.
“In particular, the (Food and Drug Administration) has approved the use of the medication mifepristone,” he said. “States may not ban mifepristone based on disagreement with the FDA’s expert judgment about its safety and efficacy.”
Normally, states would have a hard time outlawing medication that federal health authorities deemed safe, said Ciara Torres-Spelliscy, who teaches constitutional law at Stetson University Law School.
“If you’d asked me a week ago, I would have said it’s a relatively simple constitutional question, but this is all new and we have no idea how the (Supreme) Court is going to rule,” she said. “That is what I find so horrifying.”
Full faith and credit
Even if Florida can outlaw abortion medications, the state’s authority to pursue providers ends at its own borders, said Harry Nelson, a California-based lawyer who specializes in health care regulation.
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Physicians in Florida who offer telehealth abortions could face fines or lose their license to practice medicine in the state. Doctors and organizations that send pills into the state without a medical license could face criminal charges.
But there’s not much Florida could do if the physician is based in another state, Nelson said.
“Historically, states give full faith and credit to each other’s laws,” he said. “So if Florida wanted to prosecute a California doctor, the state would help them out.”
But some Democratic-led states, including California and Connecticut, have recently enacted legislation protecting physicians from legal action stemming from out-of-state laws.
“For the first time in 50 years, we have a national divide opening up where different states are not going to respect the legal status and the legal decisions of other states,” Nelson said.
It’s not clear what would happen if two states clashed, and it may take another Supreme Court case to decide the matter, he said. “It is literally the kind of divisive issue that we haven’t seen since slavery.”
‘They’re going to shift their focus’
Florida law punishes abortion providers who violate state regulations, not the pregnant individuals seeking an abortion.
But that could change if authorities can’t pursue out-of-state medical providers who prescribe abortion medications in Florida, said University of Miami law professor Caroline Corbin.
“States have always been really creative when it comes to forbidding abortion,” Corbin said. “Once it becomes more difficult to target the abortion provider, they’re going to shift their focus and target women having the abortion. That’s my prediction, at least.”
No Florida lawmakers have put forward legislation that would punish a woman for getting an abortion, said Gov. Ron DeSantis’ spokesperson, Christina Pushaw, and it’s “not under consideration in the governor’s office.”
The Tampa Bay Times repeatedly reached out to Rep. Kelli Stargel and Rep. Erin Grall — who sponsored Florida’s 15-week abortion ban, which was temporarily blocked by a Leon County judge Thursday. Neither responded to the Times’ requests for comment.
Reshaping the abortion question
Whatever laws anti-abortion states do pass will likely be unenforceable in practice, Nelson said. “Fifty years of medical technology means that abortion access is a profoundly different conversation than it was when Roe was decided.”
The actual reduction in abortions could be negligible, he said. It’s just a matter of expanding education and access to women who would otherwise struggle to find a provider.
“This is an issue where the Supreme Court can reshape American law,” Nelson said, “but there are significant questions about how much it will reshape American life.”
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