Last Thursday, the U.S. Food and Drug Administration (FDA) issued a groundbreaking decision to lift a long-standing rule that healthcare providers must distribute the abortion pill mifepristone to patients in person. The move opens the door to expanded access to telemedicine abortion in many states—but 19 states in the South and Midwest still have laws blocking access and women face obstacles to obtaining abortion pills. Texas recently banned medication abortion starting at seven weeks. In response, women are going online to buy pills.
As abortion restrictions increase, clinics close, and the cost of abortion goes up, more and more women are ordering abortion pills online and taking them safely at home, with and without telehealth support. Traffic has spiked on the website of the abortion pill advocacy group Plan C, which shares information about how to buy abortion pills online and get them by mail in all 50 states. Plan C has vetted websites selling pills and offers information about cost and delivery time. Over the last several months, Plan C’s website has had over 200,000 visitors with 88 percent new visitors. A quarter of them have come from Texas.
But is it legal to purchase abortion pills online?
“Only a handful of states make it a crime to have a self-induced abortion,” Lynn Paltrow of the National Advocates for Pregnant Women told Ms. “In most states, it’s not a crime to take actions that end one’s own pregnancy.”
Five states have explicit criminal prohibitions of self-managed abortions: Arizona, Delaware, Nevada, Oklahoma and South Carolina. New York repealed its criminal prohibition on self-managed abortion in 2019.
Paltrow continued: “That being said, even in the overwhelming majority of states where it is not a crime to self-induce an abortion, there are all sorts of laws that that could in theory be applied to people who obtain medications outside of approved medical settings.”
Only a handful of states make it a crime to have a self-induced abortion. In most states, it’s not a crime to take actions that end one’s own pregnancy.
Thirty-eight states have feticide laws, but most explicitly exclude pregnant women from criminal penalties.
But some extreme, politically-motivated prosecutors are stretching the law in order to punish women who end their own pregnancies—either using feticide laws or other generally applicable laws such as child neglect, practicing medicine on oneself, or possession of a dangerous substance.
“They excavate antiquated laws and misapply statutes never intended to be used against someone for ending their own pregnancy or for helping another person do so,” said If/When/How’s litigation counsel Yveka Pierre.
For example, in 2011, prosecutors in Idaho charged an unemployed mother of three, Jennie McCormick, with unlawful abortion after she used abortion pills purchased online to end a pregnancy. A judge later dismissed the charges as unconstitutional, and a federal appellate agreed.
In fact, there have been no successful prosecutions of women who self-managed an abortion using pills in early pregnancy, believes Dr. Beverly Winikoff, president of Gynuity Health Project, which advocates for reproductive and maternal health.
“When talking about risk, it’s important to understand the broader context,” said Elisa S. Wells, co-director of Plan C. “For instance, we know of 21 cases where people have faced prosecution for doing their own abortion—but these occurred over a time span of more than 30 years.”
“And, we also know that the number of people who successfully self-managed their abortions during that same time frame is likely very high, in the tens of thousands if not in the hundreds of thousands.”
“When you do the math—dividing 21 prosecutions by the tens of thousands of people who have managed their own abortions—you can see that the risk is actually very, very small,” Wells added.
Where you live and when you take the pills are important factors in legal exposure, says Winikoff.
“If you order a drug by mail and take it early, in the first trimester, you are much less likely to get in trouble than if you do it in the second trimester,” said Winikoff.
Vulnerability to criminal prosecution also depends on who you are. Prosecutors disproportionately target low-income women using Medicaid, immigrant women and women of color with these kinds of charges.
“Like all forms of criminalization in the United States, it affects some people more than others because of their identities, their circumstances, and where they live,” said Pierre. “Folks who already are living in a world where they’re suspected, stigmatized, and surveilled are more likely to be criminalized. There’s so much individual discretion built into every stage of the process. We know that Black, Indigenous and other people of color, immigrants, young folks, trans and gender non-conforming people, and those experiencing poverty are at the most risk of criminalization for self-managed abortion.”
Black, Indigenous and other people of color, immigrants, young folks, trans and gender non-conforming people, and those experiencing poverty are at the most risk of criminalization for self-managed abortion.
The Texas abortion ban creates civil liability for helping a person obtain an abortion, but explicitly exempts pregnant women.
In the FDA consumer information about buying medications online, nowhere does it say that it is illegal to buy medicines online, says Wells. “Their concern is to warn the consumer about being scammed or taking medicines that haven’t been quality checked by the US Government. That’s where Plan C’s mystery shopper research comes in—we test the suppliers to ensure they are reliable and also tested the pills to verify they had the correct active ingredients. Men buy Viagra online all the time and no one is asking if that is illegal.”
The FDA specifically warns people not to buy mifepristone online without a prescription because “you will bypass important safeguards designed to protect your health.” In fact, mifepristone is safer than many over-the-counter medications, including Tylenol, but remains restricted by the FDA because of political pressure from the anti-abortion movement, say advocates.
“It’s purely political,” said Plan C co-director Francine Coeytaux. “These pills should not only be in pharmacies, they should be available over-the-counter. But instead, years later, we’re still in a place where people think of this as a drug that is so dangerous it has to be in a black box.”
Men buy Viagra online all the time and no one is asking if that is illegal.
Based upon the current political climate and increasing restrictions on abortion access, there may be increased attention to self-induced abortion—which may lead to more law enforcement officials and other agencies investigating suspected practices and people, resulting in more arrests, incarcerations and deportations.
“Of course, I don’t want to in any way trivialize the traumatic impact these unjust prosecutions have had on the women who have been charged,” said Wells. “But, people who are seeking abortion pills are looking for a solution, and I would guess that most would consider the benefit of having access to the pills to far outweigh any very small legal risk they might face.”
There are steps that people who self-manage their own abortions can take to reduce their chance of a legal problem.
In the very rare case that they have to seek medical help, they do not need to say that they used abortion pills. The symptoms of abortion with pills are very similar to a natural miscarriage and there is no test to tell the difference. If they use abortion pills as directed by the World Health Organization (under the tongue or in the cheek), there is no residue that might be observed by medical professionals (vaginal use of the abortion pill may leave an observable residue).
The cases where women have been criminally prosecuted for self-managing their abortions usually involve a situation where the woman tells a doctor or nurse that she used the abortion pill, cases in later pregnancy where there is some sort of physical evidence, and/or when someone who knows the woman reports her.
Where To Go for Legal Questions and Help
For people concerned about legal exposure, there is help.
The organization If/When/How, which fights to halt the criminalization of people who self-manage their abortion, offers a legal helpline at 844-868-2812 or ReproLegalHelpline.org. The helpline assists people concerned about being criminalized for ending, or attempting to end, a pregnancy to learn more about their rights, submit questions by phone or through encrypted communication, and get connected with an attorney in their state if needed.
Last June, If/When/How launched a nationwide Repro Legal Defense Fund (RLDF)—a first-of-its-kind resource to support women and others investigated, arrested or prosecuted for self-managed abortion. RLDF provides money for bail and legal representation.
“Whether someone self-manages an abortion because they were unable to access clinical care, or because it was the care that felt right for them, no one should be punished for ending their own pregnancy, or helping someone else do so,” said Rafa Kidvai, If/When/How Legal Defense Fund director. “Now with Mississippi’s abortion ban directly challenging Roe v. Wade at the Supreme Court, it’s especially urgent to ensure that people who end their own pregnancies have the money they need to defend themselves against the state.”
“We fund the strongest legal defenses possible, helping individuals criminalized for self-managed abortion to avoid conviction and incarceration,” said Kidvai. “With financial assistance, they will be able to pay the fees of defense counsel, expert witnesses and consulting attorneys with specific expertise on issues that could make a significant difference in their cases. We will show law enforcement and abortion opponents that we stand united ready to free and defend those who get ensnared in the criminal punishment systems trap.”
RLDF hopes that providing a strong legal defense to people charged with self-managing abortion will deter future prosecutions. “The hope is that as cases are won and news of the RLDF spreads, prosecutors will be discouraged from bringing new charges because it will be too politically costly. And police will be dissuaded from investigating people for self-managed abortion,” said Kidvai.
RLDF also hopes to educate healthcare providers about the law. Dr. Jamila Perritt, president and CEO of Physicians for Reproductive Health, says clinicians often misunderstand their legal obligations with regard to self-managed abortion.
“Certainly, there are some providers who are calling the police on patients with the deliberate intent to punish and criminalize them for having an abortion,” said Perritt. “But for others, they’re simply confused about their responsibility because many get caught up in misinterpretations or misunderstandings regarding mandatory reporting laws. … Mandatory reporting laws do not apply here. There is no law that says that you as a provider must or even should report a person for suspicion of self-managing their abortion. In fact, leading medical organizations have said that this practice causes tremendous harm for the people we care for.”
Mandatory reporting laws do not apply here. There is no law that says that you as a provider must or even should report a person for suspicion of self-managing their abortion.
In addition to litigation and public education, RDLF is seeking to change the law. “We’re repealing the remaining SMA bans, reforming laws that have or could be misused against people who end their own pregnancies or help someone else do so, and reinforcing protections to create supportive haven states where no one may be criminalized for self-managed abortion or pregnancy loss,” said If/When/How executive director Jill Adams.
If/When/How achieved a victory last February when the American Bar Association adopted their resolution against the criminalization of self-managed abortion and pregnancy loss.
“People who have abortions, self-managed or otherwise, are not villains or wrongdoers,” said Adams. “It’s high time anti-abortion politicians, police, and prosecutors stopped treating and targeting them as such. People who end or lose their pregnancies are no different than anyone else. They’re just trying to live their lives and make the decisions that are right for them, their families, and their futures. Everyone deserves to self-determine their reproductive lives free from criminalization, free from discrimination, free from coercion, and free from violence.”
If/When/How has published a detailed guide to state laws related to self-managed abortion and works to halt the criminalization of self-managed abortion by using legislation and litigation to repeal any pre-Roe criminal statutes still on the books, to ensure existing laws are used appropriately by making sure feticide laws can only be used to protect—not punish—pregnant people, and to stop legislatures from creating new ways to punish people who have abortions.
“There is both a moral and a legal right to medications that people need to ensure their health,” said Paltrow. “Healthcare should not be the subject of criminal laws. Healthcare is a human right and denying women access to medications that can safely and effectively end a pregnancy in or out of a hospital setting is to deny them their dignity and their right to healthcare.”
How To Get Help
For support, go to reprolegaldefensefund.org and fill out this online form. Attorneys seeking support for representing people self-managing abortion should fill out this form. The website is currently available in English, Spanish and simplified Chinese. The helpline at 844-868-2812 has interpretation services that cover nearly all languages.
To support RDLF, donate here.
This article is for informational purposes only, not to give advice or encourage people to perform an illegal act. The contents are not a substitute for advice from a lawyer.