Will Georgia’s anti-abortion movement target pills by mail again post-Roe?
The abortion drug Mifepristone, has grown in popularity since its FDA approval in 2000 because it is less invasive than a surgical abortion, but its use in states like Georgia could soon be severely limited. (Photo by Phil Walter/Getty Images)
The battle over Roe v. Wade is done, but the fight over abortion is likely to continue in courtrooms and state legislatures, and medication abortions– those carried out by pills rather than surgery– are likely to be at the center of the conflict.
By 2020, medication abortion accounted for more than half of U.S. abortions, according to data from the Guttmacher Institute. In the most common method, patients take a hormone blocker called mifepristone, followed by another drug called misoprostol which causes the uterus to empty. Abortion pills are most effective in the first 11 weeks of pregnancy.
Some patients choose a medication abortion because it is less invasive than surgery and can be carried out at home. It can also be easier to obtain in areas with limited access to abortion.
Late last year, the Food and Drug Administration moved to allow women to receive abortion pills by mail after temporarily suspending requirements for in-person appointments during the pandemic.
That means a woman in Georgia can have the pills delivered to her home after speaking with a doctor by phone, via the internet or in-person.
That could soon change, however, with implementation of the state’s 2019 law, which affirms the humanity of a fertilized egg as early as six weeks.
A bill aimed at restricting mail-order abortion pills passed the Georgia Senate this year, but stalled in the House.
President Joe Biden has pledged to protect access to abortion medications, and U.S. Health and Human Services Secretary Xavier Becerra said on Tuesday that access to the pills will be a priority for HHS.
In a statement following the ruling, U.S. Attorney General Merrick Garland pledged that the Justice Department will “use every tool at our disposal to protect reproductive freedom,” including preventing states from banning abortion drugs.
“We stand ready to work with other arms of the federal government that seek to use their lawful authorities to protect and preserve access to reproductive care,” he said. “In particular, the FDA has approved the use of the medication mifepristone. States may not ban mifepristone based on disagreement with the FDA’s expert judgment about its safety and efficacy.”
That doesn’t particularly worry Cole Muzio, president of the conservative Christian lobbying organization Frontline Policy Action.
“Merrick Garland is neither a SCOTUS member nor policymaker,” Muzio said. “The Dobbs decision recognizes a state’s right to protect human life, and Georgia’s Heartbeat Law will soon take effect. Children with beating hearts will be protected from abortion irrespective of method, and we do believe a version of this year’s SB 456 will be an important part of ensuring the law is followed.”
New Georgia Project director of legal affairs Tangi Bush said she also expects action to restrict medication abortions.
“If we pay attention to any of our other similarly-situated states, I think that there will be guidelines drawn on those medicated abortions, and it will be much harder to obtain, if they’re able to obtain it at all,” she said. “I’ve seen a few states state that medicated abortion falls under the same guidelines as a surgical abortion, so I think that Georgia will probably follow suit in some way, fashion or form, I don’t see them leaving it alone. I don’t see them not tampering with or greatly hindering medicated abortion.”
At a Tuesday press conference, House Minority Leader James Beverly, a Macon Democrat, said he also expects to confront legislation aimed at medicated abortion early next year.
“We absolutely see that coming back,” he said. “I would not be shocked if they did a special session, quite frankly, to try to squeeze in whatever they can. The way that you stop it is to vote. We are targeting 15 seats around the state of Georgia. Many of these seats will be swayed by folk who understand that a woman has a right to her own bodily autonomy, and we’re going to reach out to them. But in order to stop with the foolishness that Republicans are doing right now in the state of Georgia, you have to do one thing and one thing only: vote.”
Friday’s decision brought widespread protests, where many participants have expressed weariness with national Democrats who they said seem to do little more than solicit votes and fundraise.
Liv Fletcher was one of a group of about two dozen protesters outside the Capitol Tuesday who say they will continue to be a presence until abortion rights are restored.
“It’s easy for politicians to say voting is our best solution, but we see that there’s so much voter suppression,” Fletcher said. “For communities of color, they don’t have as much access, and they’re trying to put more restrictions on voting. And even when we do go and vote for people who want to fight for our rights — they had time to codify Roe into law, but they didn’t. And so it’s easy to say voting is the best solution. But it’s clear that they actually don’t care what we have to say. They just want the votes, and they want the power.”
It will be up to the federal government to hash out the rules, at least in the short term, said state Sen. Jen Jordan, a Democrat from Atlanta and candidate for state attorney general, but who will enforce the rules and how strongly are still to be decided.
“Attorney General Merrick Garland came out with a statement saying that states could not ban it, the FDA has cleared it, and so I think there’ll be a fight in terms of the federal government versus any state that really does try to ban these medications,” Jordan said. “I do think one of the bigger issues would be enforcement, anyway, in terms of if someone were to get this medication in the mail, how, how are law enforcement even going to enforce it?”
Websites give advice on means women can use to access abortion pills in states which already have restrictive laws, including making arrangements with a partner in another state or setting up a virtual mailbox in another state and then having the pills forwarded. Many online pharmacies offer abortion pills without a prescription, but the drugs they sell are not tested or regulated by the FDA.
According to Plan C, a group that works to provide access to abortion pills by mail, at least 24 people have been prosecuted for self-abortion in the last 20 years, with charges ranging from concealing a birth to homicide.
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In some cases, patients said they got into trouble because they went to urgent care after their abortion concerned about the side effects and the doctor reported them to authorities.
Medication abortions are generally safe, but serious complications can occur, including blood clots and infection, according to Planned Parenthood.
Bush said she worries restrictive abortion laws will not prevent women from seeking medication abortions, but could stop them from seeking help if they experience side effects.
“At the end of the day, unfortunately, I know doctors will sit and look, not all, but some will sit and look and say, ‘a woman has come into my clinic. Do I have a duty to disclose this once I know that this is exactly what’s happened? Or is it up against me possibly losing my license or facing criminal penalty myself?’ And so that becomes the doctor’s choice at certain times, am I going to choose being licensed or am I going to choose to try to help this woman right here? And I don’t know that that’s a fair choice to have to make.”
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