Subscribe to Here’s the Deal, our politics
newsletter for analysis you won’t find anywhere else.
Thank you. Please check your inbox to confirm.
Leave your feedback
With 13 states fully banning most abortions, experts say new legal battles are likely to arise over abortions that occur without the direct involvement of a doctor, known as self-managed abortion care.
With the Supreme Court overturning Roe v. Wade in June, some patients must travel to other states for the procedure, while others may try to terminate a pregnancy on their own.
“People mean a lot of different things by [self-managed abortion]. Sometimes that’s a kind of an offhand way to say abortion that is illegal,” said Greer Donley of the University of Pittsburgh School of Law. “The traditional definition of that term is usually someone who is getting pills completely on their own, like buying them from a pharmacy in Hong Kong, and taking them and managing completely on their own.”
Donley and her co-authors David Cohen of the Drexel University School of Law and Rachel Rebouché of the Temple University School of Law wrote in a draft paper in August that will be published in the Columbia Law Review next year that the overturning of Roe “will create a complicated world of novel interjurisdictional legal conflicts over abortion.”
READ MORE: Indiana faces a shifting abortion landscape as clinics shut down statewide
The authors predict that with abortion rules now thrown to states, anti-abortion lawmakers will not only restrict abortion in their own jurisdictions but try to extend their influence beyond state lines by attempting to “impose civil or criminal liability on those who travel out of state for abortion care or on those who provide such care or facilitate its access.”
Conversely, lawmakers in states that support abortion rights will seek to expand abortion access and “pass laws that protect their providers from legal sanctions after helping out-of-state residents obtain care.”
Thrown into this coming mix of new rules and threats of legal action is self-managed abortion care.
“[With] roughly half the country now banning abortion, abortion pills open up the door for self-managed abortion,” Donley said.
Studies suggest that self-managed abortions are likely relatively rare compared to abortions assisted by a medical professional, according to the Guttmacher Institute. A 2020 study concluded that about 7 percent of women surveyed had attempted a self-managed abortion in their lifetime. Of those attempts, 28 percent were reportedly successful, though many patients who tried less effective methods went on to have an abortion by other means or had a miscarriage. Black women, Hispanic women and poor women were more likely to attempt a self-managed abortion, the study found.
In the aftermath of the Dobbs v. Jackson ruling that overturned Roe, the number of people seeking self-managed abortions is expected to go up, according to Cohen. According to a new analysis from the Guttmacher Institute, there are no clinics offering abortions in 14 states, and almost one-third of all women of reproductive age in the U.S. are living in places “where abortion is either unavailable or severely restricted.”
Abortion pills were first approved by the U.S. Food and Drug Administration in 2000. Today, an abortion using pills typically involves doses of two drugs, mifepristone and misoprostol. Mifepristone blocks a hormone known as progesterone that is necessary for pregnancy and misoprostol can induce cramping and bleeding, leading to the end of the pregnancy. The FDA initially approved their use in the first seven weeks of a pregnancy, but as of 2016, the agency allows it up to 10 weeks. According to recommendations by the World Health Organization, misoprostol can be used up to 12 weeks into some pregnancies to induce an abortion.
In the 20 years since FDA approval, and even before the Supreme Court decision that overturned Roe, abortion pills had become the most common way to end a pregnancy and have been shown to be safe and effective. According to the Guttmacher Institute, by 2020, over half of all abortions were carried out with pills.
Abortions through medication became more accessible during the pandemic, when the FDA eased rules that required in-person visits to a medical professional. That policy change was made permanent in December 2021.
Abortion pills can be used in self-managed abortion care, but due to its private nature, it’s unclear how common their use is. Online sites like Plan C provide information about self-managed abortion care, while Aid Access connects people seeking abortions to doctors in Europe who prescribe abortion medication supplied by pharmacies outside the United States. Those pharmacies then send abortion pills to patients in the U.S. via mail. Both the doctor and pharmacy in these cases are beyond U.S. jurisdiction.
READ MORE: Inside a Memphis clinic during its final days of abortion care
Plan C co-founder and co-director Elisa Wells said the organization did not give medical or legal advice and only provided information about accessing abortion medication. She added that their lawyers have assured them that their work is protected by the First Amendment.
“You know that that’s what we do. We provide information to people based on the research and all the lawyers say ‘that’s protected speech,’” Wells said. “And at the same time, [the lawyers are] a little bit nervous.”
Cohen said states where lawmakers oppose abortion are still likely to try to stop websites that provide information to facilitate abortion access.
Information on the internet is “difficult to police in only one state,” Cohen said, “and so I think we’re going to see these difficult First Amendment challenges around this information and I don’t know how it’s going to play out.”
Wells said Plan C’s lawyers have assured the organization that its work is constitutionally protected and would survive a court challenge.
“They’re trying to instill fear in people so that they’ll stop spreading information, needed information.”
Whether states will criminally charge people who induce their own abortions is another legal quandary. Even in places where abortion is banned, patients who have had abortions are not often prosecuted for undergoing the procedure. In Texas, for instance, which has led the way in restricting abortions, the law states that the person cannot be charged with murder or a lesser homicide charge.
But people who have had abortions have been charged with related offenses. In one more extreme case, a Nebraska woman – at the time 17 – who had a self-managed abortion sometime after 20 weeks was charged with concealing a death and improper handling of the remains of the fetus, along with her mother who faces additional, serious charges because she helped her daughter take the medication.
Donley said that at the moment, most anti-abortion rights groups have not pushed for punishments for the pregnant people who use abortion pills. She cites model legislation from the National Right To Life Committee that aims to ban abortion except for in cases where the life of the mother is in danger and does not impost any penalties for pregnant people who pursue abortions.
“However, I think long term we might start to see the states actually going after the pregnant person who uses the pills,” Donley said, as part of a larger campaign by some to discourage any abortions.
Despite an increase in media attention on self-managed abortion, she said, not enough has been done to explain the risks to both the people seeking abortions and those who help them.
“There’s sometimes a failure to explain that there are real legal risks that could potentially come about with self-managed abortion that patients and especially helpers right now should be aware of,” Donley said. “It might be somewhat of a big loophole in state abortion bans, but like at some point, states are going to continue to try to crack down on it and people will get caught in that.”
Wells said the possibility that someone at Plan C could be criminally charged with facillitating an abortion was something they had considered, but that they would not be “kowtowing to the fear of” it.
“I just always imagine if I have fear as a privileged, white woman sitting in a state that is not restrictive [of abortion], what does a person sitting in Alabama who actually needs an abortion feeling?” Wells said.
WATCH: Conservative states continue to restrict abortion following overturn of Roe v. Wade
People who get abortions and those who help them are also vulnerable to the discretion of the people around them. Farah Diaz-Tello, senior counsel for reproductive rights organization If/When/How, points out that while there has been worry about digital privacy, period tracking apps and other high-tech ways to potentially surveil pregnant people – what she calls “the period tracker panic of 2022” – most people who are seeking to terminate a pregnancy in violation of local laws will be turned in by the people who know them, such as friends, family members or ex-partners.
Vice reported in August that the Nebraska teen and her mother were being prosecuted using messages obtained from Facebook. While the messages may be important to the case, the initial tip-off to police came from a friend, according to the news website Jezebel.
“[Digital snooping] feels like a big red herring when the real threat, the primary threat, to people’s safety is other people who betray their trust, whether that is health care providers, whether that is other people in their lives, an abuser, etc.,” Diaz-Tello said.
Self-managed abortion care isn’t a universal solution for patients in states where the procedure is banned or inaccessible.
“For a substantial proportion of people, they can safely self-manage an abortion using pills. But there are always going to be the situations where it’s not possible,” Diaz-Tello said.
Inequities in internet access and online literacy can affect who gets information about effective methods. Some patients have adverse reactions to the medication or experience complications. And some who are far along in their pregnancies, thus requiring a larger dose of a medication such as misoprostol, face an increased risk of side effects and possible complications.
Anti-abortion activists are also looking at ways to crack down on self-managed abortion care. On Sept. 12, more than 100 advocates sent a letter to members of Congress declaring that they looked forward to working with legislators to “save as many lives as possible” by passing laws that would restrict abortion, including “mail-order chemical abortion.”
On the other side of these legal battles, health care workers in states that allow abortions could eventually try to provide remote consultations with a doctor via telehealth, then issue a prescription that is filled by a pharmacist who mails abortion pills to a patient in a state that prohibits abortion, which would raise concerns about in which jurisdiction the law should be applied. However, Donley said this is not yet being done openly.
“To my knowledge, there is no organization that is openly shipping pills into states that ban abortion for providers that are in the United States. The legal risks are enormous,” Donley said. “I have no doubt that there are people operating on the underground trying to do some of this stuff, but you don’t have any doctors that I know about. I know a lot of doctors who are interested in this, but no doctor is willing to do this yet openly.”
READ MORE: After Roe’s demise, Democrats hit Republicans who profess to back abortion-rights
In July, Massachusetts passed legislation that would protect health care workers who provide abortion care to people living in states where abortion is banned. It joins five other states– California, New York, Connecticut, New Jersey and Delaware – that have enacted shield laws, according to Elisabeth Smith, director of state policy and advocacy at the Center for Reproductive Rights.
“There are other states that considered shield legislation in 2022 and still others that plan to enact laws in 2023,” Smith said. “The six states I mentioned, the others that will join them in 2023 are really saying, ‘We’re protecting our [reproductive health] infrastructure, we’re protecting our people and we’re making sure that the laws of our state apply within our state.’”
Donley said doctors and other providers in shield states were still deciding how to proceed.
“At some point we might see U.S. doctors, especially ones in Massachusetts, who are interested and moving in this direction. So we might see that start to happen,” she said.
But while there may be new avenues for abortion pills and other methods outside of the medical system to end a pregnancy, Diaz-Tello said abortions through medical providers at clinics are still needed.
“Even though our work has long been to ensure that people can access self-managed abortion with dignity and without fear of being criminalized,” Diaz-Tello said, “we also think that it is paramount to ensure that people can access clinic-based abortion care because [that is] always going to be necessary.”
Support Provided By: