In last week’s instant reaction pod, Derek said he thought abortion pills were one of the most fascinating and important aspects amid the end of the era of Roe v. Wade. In this episode, he goes deeper into how this new technology could change the abortion debate and national politics. Abortion pills that weren’t in use 50 years ago are popular, common, safe, hard to track, and legal in more than half the country. Dozens of conservative states are moving to outlaw most abortions, including medication abortions, but banning pills is going to be very tricky. After all, it’s one thing to shut down a clinic with one address, but banning a pill that you can order online? Banning a pill that goes in the mail? That’s much harder. And the lengths to which states might have to go to surveil packages—like spying on women’s digital activities in order to track down pill buyers—will be invasions of privacy that make a lot of Americans uncomfortable, even those who want to reduce legal abortions. This is the next battleground of the abortion culture war: the pills war. Today’s return guest is Margot Sanger-Katz of The New York Times. Margot explains the basics of abortion pills, and how they’ll change the abortion debate forever.
In this excerpt, Derek and Margot discuss the challenges of enforcing a ban on abortion pills, and how the existence of such pills differentiates our current era from the time before Roe v. Wade.
Derek Thompson: I become very confused when it comes to the enforcement of the rules that ban getting pills in the mail. I understand laws that shut down abortion clinics. You go to the spot where the abortion clinic exists and you say, “You can no longer operate. We will sue you out of existence.” But these states are banning pills that are often legal a couple hundred miles to the north or the south. They’re banning pills that can be sent by national pharmaceutical companies, by European direct-to-consumer pharmaceutical companies. And more pharma is moving direct-to-consumer. These ads are all over TV like, “Hey guys, losing hair? Sign up now, get your first pills.” These kinds of companies are growing and growing. So with all of this happening, how are these states planning on policing the interstate transport of abortion pills?
Margot Sanger-Katz: Well, I think there are two answers to your question that are both important. One is, in general, when you look at state laws that are trying to ban abortion of all sorts, they really are placing the majority of the penalty on the person providing the abortion, not to the woman who’s receiving the abortion. So in general, if you live in one of these states where abortion is illegal, you as the person who obtains an illegal abortion are not going to be subject to prosecution, but whoever gives you the abortion, whether it’s a licensed doctor or some unlicensed person, that person would be subject to prosecution. And so these bans on pills kind of operate in the same way, where they’re basically saying if you’re a doctor in Connecticut and you want to provide abortion pills to a patient in Texas, you would run afoul of this Texas law and Texas might try to prosecute you.
So, that’s one, and then the other is I think that you make a really good point, which is that if you are a patient and you can figure out a way for someone to send you these pills, even if it is technically illegal for that person to give them to you, it’s pretty hard for the state to regulate you receiving them, and most of the state laws make it very hard for them to prosecute you for using them. And so I think that’s where we’re going to start to see a kind of illegal, or sort of, I sometimes call it extralegal abortion, that we of course did not have before Roe v. Wade. Before Roe v. Wade, all abortions were surgical, and so we have this model of what is an illegal abortion. And it’s always someone doing something to a woman, or in some cases, doing something to herself.
I think this is a different kind of illegal abortion, which is, can you just get a pill from someone who is not a licensed medical provider? And we already see around the world and in the United States that people are ordering abortion pills online from overseas pharmacies, and they are ending their own pregnancies at home. So I think what we’ll see in the future is I think it’s unlikely that U.S.-based doctors for the most part are going to deliberately run afoul of these state laws. I think we’re not going to see a lot of doctors in one state doing telemedicine appointments for patients in a state where telemedicine abortion is banned. But I think what we will see a lot of is patients ordering pills from other countries where it would be much harder for the State of Texas, for example, to go after the person who is writing the prescription and sending the pill.
I think we may also see more informal networks of people helping each other, maybe a friend gets the pill and brings it across state lines to you. The second pill that I mentioned, the one that causes a miscarriage, is available over the counter in Mexico, and so we already see a lot of women living close to the Mexican border will sometimes cross the border and go buy those pills and then bring them back and take them in the United States. So there’s going to be a kind of illegal abortion using these pills, a kind of smuggling that is really different from what illegal abortions looked like in the past.
Thompson: I totally agree that smuggling is going to be an aspect of this, that the extralegal reaction to the law is going to be a huge aspect of this. David Frum at The Atlantic wrote that there’s ways in which this is reminiscent of prohibition, that after the Prohibition Amendment, it’s not as if Americans stopped drinking entirely. They often got around laws by forming extralegal networks of, or explicitly illegal networks, of bootlegging alcohol into some places, barely adhering to some laws.
I just got a cocktail at a place in Manhattan called Raines Law Room, and Raines Law was a law in the 1920s I believe in New York, or maybe just before, that said that you can’t serve alcohol in any establishment on Sundays unless it’s a hotel and it’s also serving food. And so all these little establishments would pretend to be hotels and they would serve this absolutely terrible sandwich that they were only serving in order to serve the alcohol, and you just see that the marketplace essentially contorts itself to serve the consumer interest. And that’s to a certain extent what you’re describing here.
This excerpt was lightly edited for clarity.
If you would like to contribute to abortion-rights groups or learn how to support those in need after the Supreme Court’s decision to overturn Roe v. Wade, the following outlets have compiled a list of resources: BuzzFeed, The Cut, Jezebel, and The United State of Women (via Michelle Obama).
Host: Derek Thompson
Guest: Margot Sanger-Katz
Producer: Devon Manze