Comment Before spreading the word about how to get around state bans on abortion pills, Elisa Wells ran a test run using dried garbanzo beans. Wells, co-founder of the nonprofit abortion advocacy website Plan C, was testing whether commercial mail-forwarding services could serve as a link in a hidden supply chain from abortion-friendly states to states where abortion pills are banned. She and her colleagues dropped garbanzos into pharmacy bottles to mimic the sound of medicine, in case a suspicious postal worker delivered the package. The beans made it through without incident, and now Plan C’s website has a detailed description of how patients in abortion-ban states can use telehealth and mail-order services to get pills. Abortion bans have been enacted or pending in 26 states since the Supreme Court stripped the constitutional right to abortion last month, sparking a scramble by patients, advocates and health care providers to continue services as local laws evolve quickly. The most convenient method for people seeking early abortions is the medication, which can be prescribed online and mailed undetected to the patient’s door. Overturning Roe v. Wade brings more attention to the abortion pill, which has become one of the most accessible methods of abortion. (Video: The Washington Post) The drugs – mifepristone and misoprostol – are approved by the Food and Drug Administration and can be taken up to 10 weeks into pregnancy. The Biden administration said the drugs have been approved as safe and effective for use in all 50 states. But remote providers could be targeted in criminal investigations by local and state prosecutors, hit with civil lawsuits and lose their medical licenses if they break the rules by prescribing and shipping pills to people in states where abortion is illegal. So telehealth abortion services, which emerged in response to the coronavirus pandemic, and their activist allies are now looking for solutions, some of which raise important legal questions. Some advise patients to drive right across state lines to have their telemedicine appointments and use out-of-state addresses to take pills in places where they remain legal. It pushes everyone involved into legal gray areas. “If you don’t follow the rules and act in good faith, there are a lot of problems you can get into,” said Dianne Bourque, a health care attorney specializing in licensing and regulations at Mintz. Public websites maintained by activists detail another strategy pushing the legal framework: the use of mail forwarding accounts with commercial shipping services. Such paid services are often used by people in the military or frequent travelers who want their mail delivered wherever they happen to be. Thus, an abortion patient in Texas, For example, where abortion is prohibited, she could set up a mail forwarding account in Colorado, where it is legal. The patient could then use the Colorado address to accept shipment of the abortion pills after consulting with a telehealth provider. The mail delivery service would then forward the pills to the patient in Texas. Some providers avoid asking direct questions about their patients’ location during the consultation, activists say, creating a layer of plausible deniability. All the patient needs is a shipping address in a state where abortion is legal. Addresses used with a mail forwarding service look like standard home addresses, so there is nothing to indicate to the provider that the patient is using such a service. “Don’t ask, don’t tell,” said Wells, whose Plan C website serves as a clearinghouse for information about abortion pills from FDA-approved domestic sources as well as unauthorized foreign channels. Plan C received more than half a million website hits in the first few days after the Supreme Court’s ruling, Wells said. Telehealth providers are required to exercise “reasonable” diligence to make sure their patient is eligible to receive care, including being in a state where prescribing and taking abortion pills is legal, Bourque said. But if a patient lies to the provider about their location, the provider may not be liable, he said. “To grill the patient to make sure they’re not using some kind of solution is beyond what’s reasonable for state law enforcement, that’s not the provider’s job,” Bourque said. On the other hand, “if it is patently obvious to the provider that these criteria are not met, you cannot provide services.” Gap opens between states on abortion pills and out-of-state care Some blue states, including Massachusetts and California, have adopted rules that prevent officials in their state from cooperating with investigations initiated by states where abortion is illegal. But this may not provide complete immunity from professional consequences. Findings against a Massachusetts doctor who practiced without a medical license in Alabama, for example, would still have to be reported to the Massachusetts Board of Medical Registration, Bourque said. “That will come back to haunt you in the state where you have the right license,” he said. Anti-abortion politicians say strategies to circumvent state laws, such as those highlighted in Plan C, should be met with tougher deterrents. “This has to stop,” Alabama state Rep. Andrew Sorrell, who has supported legislation to ban the pills, said in a text message to the Washington Post. “Put in a fine and a criminal penalty and make it very dangerous to try.” He said penalties and fines should be imposed on both shippers and patients. So far, most state abortion bans do not criminalize patients who terminate pregnancies. Instead, they target doctors, nurses, midwives, activists and others who provide abortion care. Three states specifically ban “self-administered” abortions, which include medication abortions: South Carolina, Oklahoma and Nevada, said Farah Diaz-Tello, senior counsel and legal director of If/When/How, an advocacy group. abortion rights and maintains a legal hotline for women seeking advice on how to legally obtain an abortion. Solutions like mail forwarding could put a patient in violation of criminal laws that regulate how prescription drugs are dispensed in general, but each state has its own set of rules, Bourque said. In general, he said, “prescription fraud is a serious offense and is treated accordingly.” Practically speaking, stopping the flow of pills could be difficult for red state officials, partly because the drugs are so common. Medical abortions accounted for 54 percent of all abortions in the United States in 2020, according to the Guttmacher Institute. pro-abortion rights nonprofit that monitors abortion laws. After the Supreme Court’s 6-to-3 decision last month, telehealth providers say they’re constantly evaluating the map of what’s legal in which states, which changes almost daily. “It’s really a smile to go through,” said Melissa Grant, CEO of nonprofit telehealth abortion provider Carafem. Carafem says it will not ship abortion pills to addresses in states where abortion is prohibited and also does not allow mail forwarding if it learns a patient is using such a system. On its website, Carafem asks new patients to click on one of the 14 states where it legally offers services, indicating where they will be for their virtual appointment. But Carafem does not attempt to digitally verify patients’ locations during their session — for example, by using the patient’s computer’s unique IP address, which reveals the user’s general location. “We’re a healthcare business, not an IT vendor or a wizard,” Grant said. Carafem encourages women from states with abortion bans and medication abortion bans to travel to the nearest state border where the pills are legal and pull into a parking lot for their telehealth visit. as the Supreme Court ruling does not prevent women and other pregnant people from crossing state lines to obtain abortion services. To get the pills by mail, patients can provide a friend’s address or a PO box in an abortion-friendly state, Grant said. “We’ve talked to people sitting at their desk at work, in their toilet at school, out in their car in the parking lot,” he said. When they receive their kit, Carafem patients also receive a heat pack to help with cramps and herbal and peppermint tea to soothe an upset stomach. Telehealth abortion services are a relatively new phenomenon. Although the FDA requires that abortion pills be dispensed under the supervision of a prescriber, it relaxed some rules during the pandemic, allowing the drugs to be prescribed over the Internet and sent to patients by mail. President Biden told a governors’ meeting last week that his administration is committed to keeping abortion drugs legal and available despite a Supreme Court ruling giving states the power to ban abortions. “If states try to prevent a woman from getting drugs that have already been approved by the FDA and that have been available for more than 20 years, my administration will act and protect that woman’s right to that drug,” said Biden. While the legal pendulum is moving away from legal abortion, many telehealth providers do not explicitly ask patients where they are during the consultation. They ask patients to certify that they are in legal standing for an abortion on consent forms and online questionnaires, according to advocates and providers. “We trust our patient when they tell us they need these services,” said Christie Pitney, a nurse midwife and co-founder of Forward Midwifery, which is based in Washington, DC If…
