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The complicated — and rapidly shifting — legal risks of getting an abortion by pill


With Roe vs. Wade overturned, there is now a battle over access to medication abortion. Abortions by pill make up a majority of abortions in the U.S. now. But last week's Supreme Court ruling means about half of states will eventually ban or seriously restrict abortion, including by medication. So now the legal risks for a person seeking to terminate their pregnancy using medication are complicated, and they're rapidly shifting. NPR's Yuki Noguchi joins us to discuss.

Yuki, can you start by telling us what exactly is medication abortion, and how does it work?

YUKI NOGUCHI, BYLINE: Yeah. Usually, it's a prescribed regimen of two drugs - mifepristone and misoprostol. Those stop pregnancy hormones and expel the fetus. The FDA approved them over two decades ago. And because people used telehealth more during the pandemic instead of going to a clinic, medication abortion has become more common.

SUMMERS: I know this is no longer maybe a straightforward question, but what are the legal risks for someone who is seeking a medication abortion right now?

NOGUCHI: Well, it's a very fluid situation because, you know, since Friday, more states have moved to ban or seriously restrict abortions. And already, there are legal challenges delaying some of those from taking effect, as is the case in Louisiana and Utah. Meanwhile, at the opposite end, you have states like California and New Mexico and others bolstering their laws to protect those giving or receiving abortion care.

So clearly, it's safest to get the medication where it's still explicitly legal. So some people might travel to a state where they can get a prescription. The problem is many people seeking abortions can't afford to travel or take that much time off or leave their kids behind.

SUMMERS: Yeah. So what is someone in that situation to do then? Can they, say, get prescriptions from an out-of-state abortion provider using telehealth?

NOGUCHI: Well, laws on telehealth apply to where the patient is at the time of the - so if your state bans abortion or telehealth abortion, then, no, there is no legal way. And that's why experts say you need to cross the border to a state where getting a prescription remains legal - you know, sit in your car if you need to for that appointment. There is another option, a site called Aid Access. It's still mailing abortion medication even to patients in states that have declared it illegal. They argue abortion's a human right, and they're based in Austria where abortion is legal. And as a practical matter, it's hard to stop packages from arriving or to extradite doctors internationally.

SUMMERS: So what happens if someone is caught ordering these medications online or if they return home after an abortion? Could they be arrested?

NOGUCHI: Well, states that banned abortion say they will not criminalize those who get abortions. But Mary Ziegler is concerned that that could change. She's a law professor at the University of California, Davis.

MARY ZIEGLER: Down the line, there's more of a risk that people will be prosecuted, in particular because it's going to be really hard for states to enforce abortion bans when people are using medication abortion, if they're only punishing doctors.

NOGUCHI: What she means is that it's going to be hard to go after doctors in states like Connecticut or New Mexico because a growing number of states like those have pledged to protect doctors from prosecution for providing abortion to out-of-state patients. And that's why Ziegler says - thinks, you know, states outlawing abortion might eventually start to target the patients themselves.

SUMMERS: So one question I have here is how would law enforcement even know if a person got a medication abortion?

NOGUCHI: Yeah. Digital tracking, you know, digital footprints - your cellphone or computer logs. That's why Ziegler says digital privacy is one of the biggest risks for patients.

ZIEGLER: Don't send unencrypted text messages. Don't Google abortion. You know, don't involve other people in paying for it. You know, don't create accomplices because many conservative states - they're not going to punish people for having abortions, but they may punish people who assist those having abortions.

NOGUCHI: And in fact, the Biden administration officials cited this as a concern today as it pledged to enforce federal medical privacy laws. It invited people to come forward if they believe, for example, data from their cellphones was being used to violate their privacy. The White House and groups like Digital Defense Fund and the Electronic Frontier Foundation have put out online privacy tips specifically for people seeking abortions.

SUMMERS: NPR's Yuki Noguchi, thank you so much.

NOGUCHI: Thank you, Juana. Transcript provided by NPR, Copyright NPR.

NPR transcripts are created on a rush deadline by an NPR contractor. This text may not be in its final form and may be updated or revised in the future. Accuracy and availability may vary. The authoritative record of NPR’s programming is the audio record.

Yuki Noguchi is a correspondent on the Science Desk based out of NPR's headquarters in Washington, D.C. She started covering consumer health in the midst of the pandemic, reporting on everything from vaccination and racial inequities in access to health, to cancer care, obesity and mental health.