Most women seeking abortions today now go about self-medication by ordering two pills through the mail. According to the Guttmacher Institute, medication abortion is the chosen method for women to end a pregnancy in more than 54 percent of all abortions. The FDA allows its ingestion up to 10 weeks into a pregnancy. (The World Health Organization has concluded that it is safe up to 12 weeks.)
But how secure is the mail? According to federal law, interfering with it may lead to a fine of $250,000 or up to five years’ imprisonment or both.
Anyone convicted under the U.S. Code, 18 U.S.C. 1708, is at risk. The law reads, “Whoever steals, takes, or abstracts, or by fraud or deception obtains, or attempts so to obtain, from or out of any mail, Post Office, or station thereof, letter box, mail receptacle, or any mail route or other authorized depository for mail matter, or from a letter or mail carrier, any letter, postal card, package, bag, or mail, or abstracts or removes from any such letter, package, bag, or mail, any article or thing contained therein, or secretes, embezzles, or destroys any such letter, postal card, package, bag, or mail, or any article or thing contained therein.”
Women may order through the Postal Service two pills the Food and Drug Administration in 2000 approved for medication abortion. Their consumption in the privacy of a home leads to a miscarriage.
The mail-in procedure began to grow when the COVID-19 pandemic led to lockdowns. It is also a result of actions by several states to ban or severely limit abortion after the Supreme Court ended its constitutional protection this past June. So far, 10 states have banned abortion, but experts claim the number will grow to include at least half the states.
Abortion opponents like Dr. Christina Francis, who heads the American Association of Pro-Life Obstetricians and Gynecologists, claim that the procedure is risky if done at home. Her organization opposes all abortions except to prevent permanent harm or death to the mother.
A recent study, however, reports that medication abortion is 95 percent safe. Of some 1,157 abortions the agency studied, only 10 led to “serious complications.”
The result has been that many women now obtain the pills through the mail, including through international websites like Aid Access, a European organization founded by a Dutch physician, Dr. Rebecca Gomperts. Obtaining the medication from Mexico has also been an increasing way women apply for the pills.
Women seeking the pills may also set up a private forwarding-mail service in an abortion-friendly state. They may have to go to that state for a telehealth appointment with a health provider, but once that is completed, she can then have the pills automatically forwarded to her home address.
“They don’t have to live in the state, they just have to be there for their visit,” said Leah Coplon, a nurse midwife who is director of clinical operations for Abortion on Demand.
Abortion on Demand is the largest provider in the country. It offers services in 23 states, and treats hundreds of patients a month, and says on its website that it uses internet technology to verify the location of its patients during their consultations. It also will not mail pills to Post Office boxes or via general delivery.
Women seeking an abortion may also obtain the pills through a private forwarding service, which like iPostal1, says it operates under federal rules and regulations, the same as the U.S. Postal Service. Others do as well.
The problem is living in an abortion-banned or restricted state. An antiabortion prosecutor may discover that the procedure by pills has occurred within the state’s boundaries because the woman was one of the very few who sought medical assistance. Can she be prosecuted in a criminal case, or can a civil case be brought against her? That has not yet been tested.
So far.
But what if antiabortion individuals and groups want the states to obstruct the mailing of these pills? Will they be able to do it? According to a researcher at the Institute for Policy Studies in Washington, D.C., Brian Wakamo, states cannot interfere with the mail coming across their borders.
But what if the mail ban becomes a federal issue, especially if an antiabortion president is elected? Rep. Andrew Sorrell (R-Ala.), who has long opposed abortion, told the Washington Post in July that anyone seeking to acquire the pills should face “a fine and a criminal penalty, and make it very risky to try.”
Does this mean opening people’s mail? The answer is no, that may not be done.
Yet, other ways exist, such as when state and local law enforcement officers set up surveillance of incoming packages to determine where they are coming from. They then apply for a search warrant that a judge must sign. If officers discover the contraband pills in the search, they may criminally charge the woman, or local authorities may file a civil suit against her.
With a legal substance, which the FDA has approved, however, this cannot and will not happen. If the FDA becomes a pawn of an antiabortion presidential administration, women who have already lost their constitutional right to control their bodies may now also be hampered by the mail, one of their last bastions of support.
Jack Fruchtman, who lives in Aquinnah, has written “The Supreme Court and Constitutional Law,” now in its third edition, and “American Constitutional History,” now in its second.
