The Path to a Safe Abortion Gets Narrower—Again

Dr. Linda Prine, a family clinician in New York City, spends a lot of her day talking to Texans.

“We probably get more calls from Texas than any other state,” said Prine, founder of the Miscarriage and Abortion Hotline, a free and confidential telehealth service staffed by a group of about 70 volunteer OB-GYNs, midwives, and family clinicians. 

Established in 2019, the hotline helps callers from all 50 states, pointing them to online resources where people find and order abortion pills and guiding them through the medication abortion process.

Prine said most callers are looking for help on how to properly take the medication or reassurance that their symptoms are normal. Other times, callers reach out when they’ve had a miscarriage but are fearful they’ll be interrogated and possibly criminalized for their pregnancy loss if they go to a doctor.

“When I talk to people on the hotline, they are scared out of their minds,” Prine said. “Especially from states like Texas, they’re almost afraid to call us.”

In Texas, physicians are barred from providing both surgical abortions and abortion medication due to the state’s restrictions. As a result, thousands of Texans have turned to virtual resources, using services like the hotline to connect with out-of-state doctors. They’re also finding their own abortion pills from online providers like Aid Access, a European health nonprofit that will ship abortion medication to any mailbox in the United States.

However, Texans’ ability to self-manage their abortions—already complicated by the state’s draconian abortion restrictions—could be further restricted by the ongoing judicial battle over abortion pill access.

On April 7, U.S. District Judge Matthew Kacsmaryk of Amarillo, a Trump appointee, issued an unprecedented ruling pulling the Food and Drug Administration’s approval of the popular and safe abortion pill, mifepristone, effectively removing it from the U.S. market.

The pill is paired with the drug misoprostol to end first-trimester pregnancies. The patient takes a single dosage of mifepristone first, which blocks the hormone necessary for pregnancy growth. That is followed by a 4-pill dose of misoprostol 24 to 48 hours later, which induces cramps, causing the body to expel the pregnancy. Under current FDA guidance, mifepristone can be used up to 10 weeks gestation; the World Health Organization advises that the pills can be used up to 12 weeks into a pregnancy.

It’s a practice that’s been found to be medically safe through decades of research, including extensive real-world use.

The controversial ruling was almost immediately appealed by the FDA and the drug’s distributor, Danco Laboratories. On April 12, the U.S. Fifth Court of Appeals affirmed portions of the initial ruling while striking down others, reinstating FDA approval of the drug but only for use through seven weeks of pregnancy rather than 10, and making it illegal for U.S. pharmacies to send the drug through the mail. By Friday afternoon, the U.S. Supreme Court had weighed in, granting a temporary administrative stay and allowing mifepristone to remain on the market as it was before the initial ruling until at least this Wednesday (April 19) at midnight. On Wednesday evening, the Supreme Court extended the administrative stay by two days to Friday, April 21. 

Since doctors in Texas are already prohibited from prescribing the mifepristone-misoprostol combination for pregnancy termination, the ruling won’t fundamentally change pregnant Texans’  lack of access to abortion care within traditional healthcare settings in their own state. Nevertheless, it’s expected to have long-term consequences.

Of particular concern is how the restrictions on mifepristone might affect Texans like those who have been burning up the out-of-state helplines trying to obtain and learn how to use abortion pills on their own. Some Texans are circumventing state-level restrictions by using the postal services creatively: ordering the medications to be shipped first to an address in an abortion-safe state, then having it forwarded to their Texas address later. That may no longer be possible if the Supreme Court upholds restrictions on mailing of the pills.

A recent study found requests to Aid Access shot up all over the country after the U.S. Supreme Court decision to overturn Roe v. Wade, but most intensely in states that immediately instituted abortion bans. 

Abigail Aiken, who teaches courses on reproductive justice at the LBJ School of Public Affairs at the University of Texas at Austin and was the study’s lead author, said that as pathways to abortion care within the traditional healthcare setting began to close, more and more people became aware of alternative pathways to obtaining abortion medication. 

“When a decision like this happens, the unintended consequence is that it shines a light on self-managed abortion,” Aiken said. “Laws do nothing to change the need for abortion. People will still be looking for it. … [W]hat you do is you shift how people look for care.”

Providers such as Just the Pill and Hey Jane, both of which prescribe the abortion pills to patients in abortion-safe states, announced that they are prepared to switch to a misoprostol-only regimen should the mifepristone restrictions be upheld. 

Though still safe and effective, the misoprostol-only protocol has been found to be slightly less effective than the two-pill combination. A study published earlier this year found the one-drug protocol to be effective at ending pregnancy 88 percent of the time. A misoprostol-only approach requires a higher dosage than the mife-miso combination: 12 pills, four at a time every three hours, for patients whose pregnancies are no more than 12 weeks along. 

“It’s very safe and very effective, but misoprostol-only has been found to be slightly less effective, which could be incredibly important to people who are having to travel outside their jurisdiction to obtain an abortion,” said Dr. Anitra Beasley, an OB-GYN in Houston. Patients using the misoprostol-only protocol also experience more significant possible side effects, including cramping, bleeding, nausea, fever, and diarrhea. Doctors recommend that patients make plans ahead of time to manage such side effects.  

Rebecca Gomperts, a Dutch doctor and founder of Aid Access, told the Texas Observer that the lawsuit won’t affect her organization’s ability to provide the two-pill abortion medication regimen to U.S. patients, including Texas residents. When patients reach out to Aid Access requesting the pills, European doctors write a prescription that is then filled by an Indian pharmacy and shipped to the United States.

“I am acting in accordance with the laws and regulations in the countries where I work, and so wherever my patients are doesn’t really matter,” Gomperts said. “We’ll just continue to provide care to whoever needs it, like always.” 

Gomperts said Aid Access will also continue to offer pills for future use for anyone who requests them. 

“Just like how you have painkillers in your cabinet, we offer people the opportunity to also get the abortion pills in advance so that they have it at hand in case they need it due to an unplanned pregnancy,” she said.

In addition to first-trimester pregnancy termination, mifepristone is often used as a miscarriage management tool. Beasley, the Houston OB-GYN, said a ruling outlawing the drug would remove an important tool for doctors treating patients experiencing pregnancy loss. The misoprostol-mifepristone regime has been found more effective than misoprostol alone in treating incomplete miscarriages.

The loss of access to mifepristone would be a troubling development for Texas doctors, who are already inhibited from providing a full spectrum of care for miscarriage management thanks to the state’s draconian abortion laws. 

Medical experts also say that loss would place additional strain on already-overextended abortion clinics in abortion-safe states, where many pregnant Texans have been forced to travel.  

“We know that New Mexico has absorbed a lot of Texas patients, but there are just not enough facilities, number of providers, number of nurses and staff that would be able to provide procedural abortion if medication abortion really is not available anymore,” Beasley said. 

Even before the latest judicial battle over abortion medication, self-managing an abortion was not without legal risk. 

A 2022 report from If/When/How, a reproductive rights legal aid group, identified 61 cases in which people across the country were criminally investigated or arrested for terminating their pregnancies outside of traditional healthcare settings. All of those cases occurred between 2000 and 2020, long before the overturning of Roe v. Wade. 

“It shows that criminalization doesn’t happen because of laws, but in spite of laws,” said Laura Huss, a senior researcher at If/When/How and co-author of the report.  

Still, Dana Sussman, executive director of Pregnancy Justice, an aid group that provides legal representation for people facing pregnancy and abortion relation prosecution, said criminalization, while possible, is not common.

“There are laws that prosecutors have used in the United States to prosecute people for self-managing their abortions, but those cases are very, very rare,” Sussman said. “The pills are exceedingly safe to use. It’s the fear surrounding potential criminalization and the actual criminalization of healthcare that is the only real danger here.”

For now, activists say most legal risk falls on doctors prescribing the pills rather than on the patients taking them. 

“It’s not illegal for people to do this,” Prine said. “It’s illegal for doctors to provide them with the pills, but it’s not illegal to take these pills in any state.” And, Sussman said, that shouldn’t change, even if FDA approval of mifepristone is pulled.

“It won’t automatically create criminal penalties for people. It will prevent the manufacturer of the medication and the providers who would prescribe the medication from being able to do so,”  Sussman said. “The downstream impact that it’ll have on people who need the medication is that it will be harder to access, but it doesn’t automatically create criminal penalties for people who are using that medication.”

To reduce the possibility of criminalization, Prine recommends that patients limit what they disclose to a doctor after self-managing an abortion. Rather than disclosing the circumstances of the abortion, Prine said, patients should tell their doctor they had a miscarriage. 

“There’s no way to tell if a person has self-induced abortion or if they are just having a spontaneous miscarriage,” Prine said. As long as the patients themselves don’t divulge that they’ve taken the pills, she said, “they can’t be charged with anything.” 

Advocates also recommended that pregnant Texans who want to self-manage their abortions be careful about leaving digital footprints.

“It’s absolutely part of the equation for someone to understand not only what resources are out there for their medical questions, for their legal concerns, but also for their digital privacy concerns,” said Amy Merrill, digital director and co-found of Plan C in a March interview with the Observer.  

Experts say users can take steps to maintain their privacy online by turning off location sharing on their phone, using encrypted messaging services like Signal, and using the search engine DuckDuckGo rather than Google to search for information.

Regardless of the outcome of the case, experts also worry about a chilling effect on people’s willingness to try using abortion medication. 

“Any judgment or decision is going to cause a lot of fear in people who need abortion, and so even if the medications are still accessible, the fear of someone watching them, surveilling them, [the fear of ] criminalization is going to be there,” Beasley said. “So even if they can access [the medicines], I don’t know if people will feel comfortable doing it.”