A Post-Roe World Would Pave the Way for a New Black Market in Abortion Pills
Forget coat-hangers and back alleys. The future of illegal abortions is online pharmaceuticals.
The graphic was simple but gripping: a black background with a wire coat hanger floating in the middle over one all-caps phrase: THE END OF ROE. HuffPost's editor-in-chief Lydia Polgreen tweeted out the image on Thursday morning, one of a string of left-leaning media nods to the same conclusion: Justice Anthony Kennedy's retirement from the U.S. Supreme Court is the beginning of a certain end to legal abortion access in America.
No one can say for sure how Justice John Roberts would go on either overturning or weakening Roe, and any number of hiccups could snag state plans to outlaw abortion, but there's a real chance that the Court opening created by Kennedy's departure will mean a rough patch for reproductive freedom, abortion access, and women's autonomy in this country—and, yes, perhaps even an overturning of Roe and the outlawing of abortion in some areas.
But in a modern world where abortion is outlawed, the coat hanger is probably an ill-fitting and anachronistic symbol. The availability of easy-to-administer abortion-inducing pills and the impossibility of stopping their flow from foreign pharmacies would create a situation unlike in previous eras when it was difficult or illegal to terminate pregnancies.
Right now, the U.S. allows women to obtain what are known as "medical abortions"—the kind induced via pharmaceuticals, not surgery—through the first 10 weeks of pregnancy, using the two-step drug combo of mifepristone and misoprostol. This kind of abortion makes up a growing share of total abortions in America (a number which has been declining more or less steadily since the early 1980s).
While the regulations regarding abortion pills vary by state, most require a physician to dispense the pill. But other than confirming pregnancy and determining gestational age, there's little (non-bureaucratic) reason why medical abortions require a doctor or even an office visit at all. Complications can certainly arise after taking the pill, necessitating further care in some cases, but these are pretty rare. For the vast majority of pregnant people who take the pill as directed, the process may be painful but can be undertaken at home.
Good morning. pic.twitter.com/sx1krY8ZvH
— Lydia Polgreen (@lpolgreen) June 28, 2018
If abortion were illegal in parts of the country, women these days would be much more likely to attempt abortion with black-market pills than coat hangers or other more dangerous measures. That's not to say that these pills wouldn't be without their dangers: Any drugs bought on the black market can pose quality-control problems. But with foreign pharmacies relatively easy to order from online, and abortion pills still legal in many states, opportunities to obtain legit abortion pills in an underground market may actually be pretty expansive.
In this way, pregnant women's options and outcomes in a post-Roe world might not be a grim or gruesome as they were in an earlier era. And efforts to actually eradicate abortion stand less of a chance than they ever have before, when the only reliable ways to terminate pregnancies involved invasive and dangerous medical procedures undertaken in specific locales. As it stands now, anyone with an internet connection and a little cash can pretty easily obtain the pills, and no special or sterile setting is required.
But this also opens up other frightening possibilities. A crackdown on either pharmaceuticals ordered online from foreign pharmacies or pills flowing between states could seriously step up the time-tested brutality and civil-liberties squelching capability of the drug war.
Many states already have criminal laws against illegally induced abortions, and women have been prosecuted under these (and anti-fetacide laws) for illegally obtaining and taking pills to induce abortion. In another instance, a mother was imprisoned for illegally obtaining the pills for her teenage daughter—and this is with legal abortion. In a country where abortion was illegal or inaccessible in some states, we could almost certainly expect to see more state laws targeting both women who self-induce abortions and (especially) people who assist them in doing so in any capacity.
We've already seen a recent weakening of protections under Section 230 of the Communications Decency Act, the federal provision protecting internet platforms and publishers from certain legal liability for the speech of their users, or conduct resulting from that speech. As of this spring, websites and apps can be sued in civil court and criminally prosecuted by states if anyone uses them to facilitate or promote prostitution. It's not hard to imagine Congress carving out a similar provision for any website that somehow facilitated someone obtaining abortion drugs illegally.
The same goes for laws like the Mann Act, still in frequent use to punish people who drive other adults across state lines for "immoral purposes" (usually sex work). Under a slightly revised Mann Act or something similar, we could see whole new swaths of federal agents devoted to ferreting out and stopping people from helping women in states where abortion is illegal obtain abortions in other states.
With our current state of medicine and technology, eliminating abortion anywhere in the country could prove more difficult than the pro-choice side fears—a small consolation, but a consolation nonetheless. Meanwhile, the police-state antics, disastrous policy, and rising prison populations that come from outlawing abortion could prove every bit as devastating to American women and the general state of freedom in the country as any return to back-alley abortion doctors could be.