Though their states severely restrict abortion or place limits on having one through telehealth, about 8,000 women per month late last year were getting abortion pills by mail from states with legal protections for prescribers, a new survey finds.
Tuesday's release of the #WeCount report is the first time a number has been put on how often the medical system workaround is being used. The research was conducted for the Society of Family Planning, which supports abortion rights.
The group found that by December 2023, providers in states with the protections were prescribing pills to about 6,000 women a month in states where abortion was banned at all stages of pregnancy or once cardiac activity can be detected — about six weeks, often before women realize they're pregnant. The prescriptions also were going to about 2,000 women a month in states where the local laws limit abortion pill prescriptions by telemedicine.
“People ... are using the various mechanisms to get pills that are out there,” Drexel University law professor David Cohen said. This "is not surprising based on what we know throughout human history and across the world: People will find a way to terminate pregnancies they don't want.”
Medication abortions typically involve a combination two drugs: mifepristone and misoprostol. The rise of these pills, now used for most abortions in the U.S., is one reason total abortion numbers increased even after the Supreme Court overturned Roe v. Wade in 2022. The survey found that total monthly abortions hovered around 90,000 in 2023 — higher than the previous year.
After Roe was overturned, abortion bans took effect in most Republican-controlled states. Fourteen states now prohibit it with few exceptions, while three others bar it after about six weeks of pregnancy.
But many Democratic-controlled states went the opposite way. They've adopted laws intended to protect people in their states from investigations involving abortion-related crimes by authorities in other states. By the end of last year, five of those states — Colorado, Massachusetts, New York, Vermont and Washington — had such protections in place specifically to cover abortion pill prescriptions by telemedicine.
“If a Colorado provider provides telehealth care to a patient who's in Texas, Colorado will not participate in any Texas criminal action or civil lawsuit,” Cohen said. “Colorado says: ‘The care that was provided in our state was legal. It follows our laws because the provider was in our state.’”
Wendy Stark, president and CEO of Planned Parenthood of Greater New York, called the shield law there “a critical win for abortion access in our state.”
James Bopp Jr., general counsel for the National Right to Life Committee, said the law where the abortion takes place — not where the prescriber is located — should apply in pill-by-telemedicine abortions. That's the way it is with other laws, he said.
But unlike many other aspects of abortion policy, this issue hasn't been tested in court yet.
Bopp said that the only way to challenge a shield law in court would be for a prosecutor in a state with a ban to charge an out-of-state prescriber with providing an illegal abortion.
“It’ll probably occur, and we’ll get a legal challenge,” Bopp said.
Researchers note that before the shield laws took effect, people were obtaining abortion pills from sources outside the formal medical system, but it’s not clear exactly how many.
Alison Norris, an epidemiologist at Ohio State University and a lead researcher on the #WeCount report, said the group is not breaking down how many pills were shipped to each state with a ban “to maintain the highest level of protection for individuals receiving that care and providers providing that care.”
Dr. Rebecca Gomperts, director of Aid Access, an abortion pill supplier working with U.S. providers, said having more shield laws will make the health care system more resilient.
“They’re extremely important because they make doctors and providers ... feel safe and protected,” said Gomperts, whose organization's numbers were included in the #WeCount report. “I hope what we will see in the end is that all the states that are not banning abortion will adopt shield laws.”