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What is the future of abortion pills, if the Supreme Court lets states ban abortion?

LEILA FADEL, HOST:

If the Supreme Court overturns Roe v. Wade, states can set their own abortion policies. But what about abortion pills, which can be prescribed across state lines? Medication now accounts for more than half of abortions, fueled in part by a greater reliance on telehealth. NPR's Yuki Noguchi joins us to discuss the legal future of accessing abortion this way. Good morning, Yuki.

YUKI NOGUCHI, BYLINE: Good morning, Leila.

FADEL: So, Yuki, that draft opinion shows the Supreme Court is poised to overturn Roe. If that happens, what's next?

NOGUCHI: Well, what's next is a legal battle between red and blue states. A ruling will prompt about half of states to ban or further restrict abortion, whether performing in clinics or by medication. However, the Food and Drug Administration will still permit telehealth access to these pills for use up to 10 weeks into pregnancy. And these differences in policies are important because both sides know that getting abortion pills through telehealth is a primary workaround for people in states clamping down on abortion. That's already happening in Texas, where new abortion restrictions took effect last fall.

FADEL: OK, that's Texas. What about other states?

NOGUCHI: Yeah. So you're seeing states take very different legal positions right now. States like Louisiana and South Carolina, for example, will allow criminal prosecution of doctors providing abortions. But Connecticut recently passed a law saying it would shield its doctors who prescribe the pills to patients in other states that limit abortion, which means Connecticut won't extradite them to those states for prosecution. And New York and California are considering similar measures. So Mary Ziegler says it's basically this faceoff between states. She's a law professor at the University of California, Davis.

MARY ZIEGLER: Soon the question is going to be how states and potentially the federal government navigate this arms race between people who are seeking to use medication abortion to circumvent state abortion bans and how states try to close those loopholes.

NOGUCHI: Ziegler says it raises other questions as well, like, you know, can states try to stop people from traveling or have a say in what's legal in another state?

ZIEGLER: And so if all of that sounds like the abortion issue isn't going to be out of the courts any time soon, it's because that's true.

NOGUCHI: And, you know, Leila, you'll see both sides just lawyering up.

FADEL: OK, so more legal fights to come. But this ruling hasn't been handed down yet. So as we sit here today, as we talk, is getting pills using telehealth legal? And then the bigger question - will it be after the ruling?

NOGUCHI: Yeah. So it'll depend where you are and who you ask. There are 19 states that currently ban abortion care by telehealth, but it is possible to get them legally in other states. Doctors can prescribe - you know, treat and prescribe in states where they're licensed and where telehealth abortion care is permitted. But the law is grayer when it comes to prescribing into states with abortion restrictions remotely. So Aid Access, for example, does that. Its founder, Dr. Rebecca Gomperts, works out of Austria and ships medications from India. The FDA says this importation of drugs isn't allowed, but so far it hasn't shut it down either. And Ziegler, the law professor, says Gomperts basically operates between international and domestic law.

ZIEGLER: Aid Access has taken the position, essentially, that where she is, abortion is considered legal. She considers abortion to be a human right. State laws aside, this is a human right, and, you know, access is going to abide by that logic, not by the rules in each state.

NOGUCHI: And as she said, you know, abortion is legal in Austria, where Aid Access is based. So extradition to the U.S. for violating a state's law is difficult and unlikely. And, you know, a Supreme Court ruling won't change that.

FADEL: Interesting. So how are those sites that offer these pills preparing for a possible post-Roe world?

NOGUCHI: Yeah. They're already seeing surging demand. Traffic on Aid Access' site jumped 30-fold the week after the draft ruling was leaked.

FADEL: Wow.

NOGUCHI: And people are even requesting prescriptions to hang on to, you know, just in case they'll need it. And once there is a ruling, more people, of course, will be unable to get abortions in their own state, and so they'll have to travel to clinics where abortion remains legal if they need to go to a clinic. But many of those clinics are already overbooked. And that's where Jamie Phifer hopes that her site, Abortion on Demand, can step in. She hopes telehealth will alleviate those wait times, especially for those early in pregnancy or who have fewer medical risks.

JAMIE PHIFER: We anticipate serving patients who are already in these haven states experiencing longer wait times for in-person care.

FADEL: Now, are there concerns about relying on telehealth from a doctor who might be very far from the patient that they're actually treating?

NOGUCHI: Well, yes, there are the same trade-offs that exist in telehealth in general - right? - if it might be cheaper and easier to access, but of course, in-person follow-up care might be harder. And again, these pills are FDA approved, and the risk of complication is low. But if or when, you know, a complication should occur, people are often left to find follow-up care with another doctor. So Katie Glenn argues telehealth makes abortion less safe. She is government affairs counsel for Americans United for Life, a policy group against abortion rights.

KATIE GLENN: This is a professionalized business that is designed to provide substandard care to every single person who comes to the website. These websites don't post, like, this is a picture and the bio and the credentials of the doctor who does our calls. Like, we have no idea.

NOGUCHI: So Glenn argues in favor of laws holding doctors accountable through criminal prosecution.

FADEL: And what do those providers say?

NOGUCHI: Well, that's why they want to see their home states pass laws shielding them from prosecution by another state. One New York provider told me such provisions would, you know, give her the assurances she needs to continue prescribing via telehealth across the country.

UNIDENTIFIED PHYSICIAN: If I have these protections from New York that I would then be able to send medication, abortion pills, to people in any state with the understanding that this is an FDA-approved medication, that is something I am licensed and fully capable of doing. But I will certainly not be visiting any of these red states because somehow if they knew I was there, I would be brought in. And New York can't protect me if I am in one of these other states.

NOGUCHI: You know, Leila, so there are some personal risks to providers, of course. This doctor, for example, didn't want to share her name for fear of harassment.

FADEL: So no road trips through these states in her future.

NOGUCHI: Yeah.

FADEL: That's Yuki Noguchi, a science correspondent for NPR. Thank you so much, Yuki.

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

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.