Anti-abortion groups are wrongly conflating abortion medication with illegal “drug trafficking” as Republicans push to shut down remote clinics nationwide, raising fears that activists, providers and pregnant people could soon be prosecuted for medications that are considered to be as safe as Tylenol and that account for more than half of all reported abortions in the United States.
Republicans in Congress are working with anti-abortion groups to spread misinformation about the safety of abortion pills and paint telehealth providers as “drug trafficking operations” exploiting the postal system. In recent letters to the Justice Department and the Food and Drug Administration (FDA), a majority of Republican senators claim mail-order clinics operating in any state are in violation of an obscure law originally written in the 19th century — decades before women won the right to vote — that makes it a crime to send “abortion related paraphernalia” through the U.S. Postal Service.
The senators also claim that remote abortion medication providers are in violation of racketeering and money laundering laws often used to prosecute major drug traffickers and urge Attorney General Merrick Garland to shut them down. Garland and the Biden administration are working instead to protect access to abortion pills, which are approved by the FDA and remain legal under federal prescription drug law.
Meanwhile, all eyes are currently on Texas, where a federal lawsuit filed by anti-abortion groups aims to take the abortion medication mifepristone off the market in every state, not just those that recently banned or restricted abortion. The plaintiffs are asking U.S. District Court Judge Matthew Kacsmaryk for an injunction that would suspend the FDA’s approval of mifepristone for abortion care — a decision dating back to the year 2000. Mifepristone is the first drug in a two-step regimen typically used for abortion care and miscarriage management in the U.S.
The Justice Department and health experts say the lawsuit is riddled with baseless medical claims, but Kacsmaryk is a Trump appointee known for hostility toward reproductive freedom and LGBTQ rights. An appeal would land at the conservative Fifth Circuit Court of Appeals and could eventually reach the Supreme Court, where a right-wing majority threw out Roe v. Wade and the constitutional right to abortion last year.
Anti-abortion groups are enraged that abortion pills prescribed via telehealth and delivered in the mail can provide a vital workaround for people living in states where abortion is now heavily restricted or banned. The Texas lawsuit was filed after the FDA finalized rules allowing certified retail pharmacies and mail-order clinics to dispense abortion pills directly to patients, steps the Biden administration took to expand access during the pandemic and after the fall of Roe. Kacsmaryk could rule on the plaintiff’s motion for an injunction as early as February 10.
Kimberly Inez McGuire, executive director of United for Reproductive and Gender Equity, said the lawsuit in Texas is a dangerous attempt by anti-abortion groups to “severely restrict the reproductive health care decisions of millions of people” and further upend pregnancy care as the nation grapples with an extremely confusing post-Roe legal landscape.
“Let’s be clear: Abortion pills are a safe and effective option for managing abortions on our own terms, and they should be accessible for everyone everywhere, whether in a clinic or for self-managed abortion,” McGuire said in a statement.
For people living in states with abortion bans, meeting with a prescriber remotely and receiving medication for self-managing abortion in the mail is the only option besides traveling out of state, even if abortion is technically “illegal” under state law. However, 18 states prohibit abortion prescriptions via telehealth, and people living under abortion bans are ordering pills from overseas pharmacies or connecting with underground services. This process can take more time than a standard telehealth service, forcing some people to self-manage abortions later on in pregnancy.
The Justice Department argues that Congress granted the FDA power to approve prescription drugs such as mifepristone, not states such as Texas that set their own restrictions. Whether judges accept this line of legal reasoning about FDA authority could determine the availability of abortion medication for millions of people.
In direct contrast to the Texas anti-abortion case, two lawsuits filed by providers in West Virginia and North Carolina argue the FDA’s carefully crafted rules for medication abortion supersede state restrictions. These cases could expand access nationally if federal courts agree, but McGuire said an injunction against the FDA’s approval of mifepristone in Texas would open the door for zealous prosecutors to target patients and providers.
The U.S. has a dark history of using reproductive policy to coerce Black and Indigenous women, and conservative prosecutors still target women who take drugs during pregnancy — even when the drugs were prescribed by a doctor. Republican rhetoric conflating telehealth abortion services with “illegal drug trafficking operations” reeks of the decades-long “war on drugs” that has devasted marginalized communities with mass incarceration and police violence.
“We are particularly concerned that the loss of FDA approval may lead to increased risks of criminalization and surveillance, particularly for young, Black, immigrant and trans folks who self-manage their abortions,” McGuire said, adding that such an outcome would also disproportionately affect people in the states where abortion bans already restrict care.
Attorney General Garland and the Biden administration have so far pledged not to interfere with remote abortion medication providers, arguing the U.S. Postal Service cannot know whether abortion pills sent in the mail will be used for a lawful purpose, such as managing a miscarriage in a state where abortion is banned. However, the stance taken by federal prosecutors could easily change if a Republican were to win the White House in 2024. Ultimately, Congress must enshrine the right to abortion in federal law in order to protect access to medication abortion in the long term.
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