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If Roe falls, how would states regulate mail-order abortion pills? Look to Texas

KT Volkova holds a PlanCPills.org card, which directs pregnant people to a website providing information to obtain abortion pills, in San Antonio
KT Volkova, 24, holds a PlanCPills.org card, which directs pregnant people to a website providing information to obtain abortion pills, in San Antonio on Sept. 28, 2021. When KT discovered they were pregnant a few days before Texas enacted the strictest anti-abortion law in the country, they took an abortion-inducing medication at home that came by mail since no appointments were available before the state's deadline.

More than half of all abortions in the United States are known as “medication abortions,” according to the Guttmacher Institute. People terminate their pregnancies at home by taking a combination of two pills, and those pills can be easily sent through the mail. So how would Texas regulate those types of abortions should Roe v. Wade fall?

University of Texas at Austin reproductive law expert Elizabeth Sepper said current Texas law on this topic is instructive, since SB4 already bans medication abortion in Texas starting at seven weeks of pregnancy. It’s a state felony punishable by a $10,000 fine and up to two years in prison.

"That also applies to those who would ship medication abortion into Texas,” Sepper said.

In fact, Senate Bill 4 makes it a crime to send abortion medication through the mail at all in Texas. That's a practice that became common nationwide after the FDA approved it in April 2021 to limit in-person doctor visits during the COVID-19 pandemic.

But what if the medication is shipped from a state where medication abortion remains legal? Or if it comes from another country, like Mexico?

“The crime could be thought to have taken place in the state of Texas if the medication abortion is taken in Texas," Sepper said. "You might say that's the site of the crime; where the death of the fetus or the embryo occurred.”

This is something known as long arm jurisdiction.

But if people buy abortion medication through the mail from Mexico, how do Texas authorities enforce the ban? Sepper said that is difficult.

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“You still have to get hold of the person in Mexico. So if they never come into Texas that's going to be a lot harder to do," she pointed out. "This is also an open question, including between states, not just between the United States and Mexico.”

Under SB4 the person who takes abortion medication to terminate pregnancy is not committing a crime. The law only goes after providers. That would not change if Roe is overturned. Providers remain the target.

However, Sepper pointed out that the difficulty surrounding the prosecution of mail-order medication abortion providers may make lawmakers give those who terminate pregnancies using the meds a second look.

“I think it's entirely possible and perhaps likely that the next step for anti-abortion legislators will be to come after medication abortion and impose criminal penalties not only for dispensing medication abortion, but for taking medication abortion," Sepper said.

"But we're not there yet,” she added.

The two-drug combination most commonly used for medication abortion includes mifepristone, which was deemed safe and effective by the FDA more than 20 years ago, and misoprostol. They can be taken at home over a two-day period and, in combination, are approved by the federal agency for pregnancy termination during the first ten weeks of pregnancy.

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Bonnie Petrie can be reached at Bonnie@TPR.org and on Twitter at @kbonniepetrie