As a Democratic state lawmaker in South Carolina, Rep. Elizabeth “Spencer” Wetmore is in constant contact with abortion rights leaders and reproductive health providers in her state. Despite poring over anti-abortion legislation pushed by Republicans and reams of existing state law, even Wetmore is confused about the status of abortion rights in the Palmetto State.
In 2021, South Carolina’s Republican-led legislature passed a law banning abortion after six weeks of pregnancy that was blocked by a federal court. Then, in June 2022, the United States Supreme Court’s right-wing majority threw out the constitutional right to abortion with its ruling in Dobbs v. Jackson Women’s Health Organization. The six-week abortion ban in South Carolina suddenly went into effect as state lawmakers debated a “no week” ban, filling the headlines with talk of a near-total ban on abortion. Meanwhile, legal challenges to the six-week ban wound through the courts.
“At that point, all confusion broke loose in our hospitals as to what the status of the law was,” Wetmore said, referring to dangerous disruptions to pregnancy care that put lives at risk across the South in the aftermath of Dobbs. “We were hearing some awful stories coming out of hospitals during the period that the six-week ban was enacted.”
The South Carolina Supreme Court permanently struck down the six-week abortion ban in early January, citing the right to privacy in the state constitution. Despite onerous barriers on patients put in place before Dobbs, Wetmore said medical abortion is available up to 20 weeks in South Carolina, and information about accessing prescription medication for abortion is still listed on provider websites. However, Wetmore said an obscure 1974 law appears to criminalize those who take abortion medication at home, even if it’s not currently enforced. Republicans are once again pushing a near total ban in the legislature.
Sound confusing? You’re not alone. Amid furious legal battles and legislative onslaughts against reproductive rights, millions of people across the country are unsure whether they can legally obtain and use the abortion medication mifepristone, as well as the emergency contraception known as Plan B. Advocates say the confusion reflects a favorite tactic of the anti-abortion movement, which is to intentionally write laws to confuse and mislead patients and their doctors in order to deter reproductive care.
Nearly half of all adults nationwide are unsure whether medication abortion (mifepristone and misoprostol) remains legal in their state, including 41 percent of women ages 18 to 49, according to a new survey by the Kaiser Family Foundation. About one in eight adults and one in ten women incorrectly believe medication abortion is still “legal” in their state despite near total bans on abortion across 13 states. Mifepristone and misoprostol are also a standard treatment for managing miscarriages, only adding to the legal confusion.
The confusion extends beyond abortion pills. Alarmingly, nearly one-third of adults nationwide are “unsure” whether emergency contraception is still legal where they live. While Republicans in Congress have blocked legislation that would enshrine the right to contraception into federal law, Plan B remains legal in all 50 states.
Medication abortion accounts for more than half of all reported abortions in the U.S., but only 31 percent of all adults and less than half (46 percent) of women ages 18 to 49 say they have heard of the medication abortion pill, according to Kaiser surveys. Awareness of mifepristone may be increasing since Dobbs as activists spread information online and people who can become pregnant consider their options or simply stock up on the drug just in case.
Recent changes to federal regulation made prescription mifepristone available via certified online providers and telemedicine, and activists are quietly helping people access and learn to safely use abortion pills in states where most abortions are banned. Advocates say the significance of mifepristone after Dobbs cannot be overstated: Thanks to abortion pills, abortions can be performed safely at home, even if abortion is “illegal” under state law.
The anti-abortion movement is deeply divided over whether and how to enforce bans on medication abortion, but providers sending pills across state lines are a certain target for right-wing lawmakers. Further muddying the waters, Republican attorneys general in 20 states that have banned or attempted to restrict abortion — including South Carolina — sent a misleading letter to CVS and Walgreens this week warning that the pharmacies could violate state and federal laws by following Food and Drug Administration (FDA) regulations for dispensing mifepristone and misoprostol.
Indiana and Texas imposed bans on medication abortion after 10 and 7 weeks of pregnancy respectively, while 18 states require patients to be in the physical presence of the prescribing clinician to obtain abortion medication. These restrictions run counter to the FDA rules, which allow patients to consult with prescribers remotely from any state. In this ever-shifting legal landscape, confusion over which reproductive health services are available and where presents a giant yet ambiguous barrier to care.
“The story is changing every day. Even lawmakers have to Google what the law is.”
—South Carolina State Rep. Elizabeth “Spencer” Wetmore
Meanwhile, according to Wetmore’s reading of South Carolina state law dating back to the early 1970s, a pregnant person could be charged with a misdemeanor for taking abortion medication at home, which is now part of the routine treatment five decades after the law was passed. Medication abortion is legal in South Carolina through the second trimester — for now — but only under medical supervision at a hospital or clinic. Obtaining abortion pills via telehealth is now illegal in the state, so the other option would be visiting a doctor to take a first pill and later taking a second pill at home, which appears to conflict with the decades-old statute.
Wetmore doubts officials are aware of the law as written, but she fears zealous prosecutors could still arrest and punish people for receiving abortion pills in the mail or simply following their doctor’s instructions to self-manage abortion at home. Wetmore said she and other Democrats are preparing to bring up the issue, along with the basic medical facts ignored by anti-abortion laws, when lawmakers consider the latest sweeping ban proposed by Republicans next week.
“I don’t think that people know that the 1974 law is on the books, but even without that, it’s obviously confusing as hell,” Wetmore said. “The story is changing every day. Even lawmakers have to Google what the law is.”
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