American women are seeking abortions in states with lax restrictions — and even other countries.
American women are seeking abortions in states with lax restrictions — and even other countries.
T he New York Times has been gathering data that should make every fan of the Dobbs decision take a moment of silence. After the Supreme Court overturned Roe v. Wade last year, abortion restrictions have been passed in dozens of (conservative) states, ranging from total bans to gestational limits. And yet, the number of abortions across the U.S. in the first six months of 2023 has increased by nearly 50,000 when compared with the first six months of 2020. Despite the decreased number of abortions in states with firm restrictions, the surge in states with lax policies has contributed to an overall increase in abortions across the country.
Most National Review readers will be able to guess which states have seen a surge in abortions in the first half of this year (hint: think blue). However, not all such states are Democratic strongholds. Conservative bastions including Kansas and Florida have seen a sizeable increase in abortions as well. Currently, Illinois leads the pack, with nearly 20,000 more abortions recorded in the first half of 2023 than in the first half of 2020. California, North Carolina, and New York recorded around 10,000 more abortions in the same span, and Kansas, New Mexico, Colorado, and Florida recorded around 5,000 more. Across the U.S., states with minimal abortion restrictions have absorbed a new flow of abortion-seekers traveling from states with bans.
When the Court threw the abortion question back to the states in the Dobbs decision, it set the stage for the current minefield of abortion legislation across the U.S. — a dalmatian of states with and without abortion bans. The U.S. Constitution protects the freedom of citizens’ movement across state lines, and rightly so. However, this constitutional freedom presents an insurmountable obstacle to any real enforcement of a state’s abortions restrictions on its citizenry. As long as states such as Illinois exist (and the Democratic Party doesn’t experience a Great Awakening over the dignity of the unborn), women in states that restrict abortion will always have access to the procedure — they might just have to board a bus (which many pro-abortion groups already fund and organize, not to mention the major companies that have vowed to pay for such travel).
Women who reside in states with bans can also order abortion pills online. Pro-life activists often give this self-delivered, chemical method of abortion less screen time than the more grotesque, surgical procedures reserved for late-term abortions, but most abortions in the U.S. are caused by oral abortifacients.
According to the FDA, the most common method of chemical abortifacient — mifepristone, taken in regimen with misoprostol — can be taken through ten weeks’ gestation. During the pandemic, the FDA relaxed in-person prescription requirements to accommodate social distancing, allowing certain prescriptions to be filled by mail. However, for drugs like Mifepristone, the shift to legal telehealth prescriptions has become permanent. Earlier this year the conservative legal group Alliance Defending Freedom (ADF) filed a case in the fifth circuit court of appeals, Alliance for Hippocratic Medicine v. U.S. Food and Drug Administration, that challenged the FDA over its lax regulations of mifepristone. The lead plaintiff, Alliance for Hippocratic Medicine (AHM), is a coalition of 30,000 practitioners of medicine. It was founded to “uphold and promote the fundamental principles of Hippocratic medicine,” which includes “protecting the vulnerable at the beginning and end of life.” Other plaintiffs include the American Association of Pro-Life Obstetricians and Gynecologists (AAPLOG), the American College of Pediatricians, and Christian Medical and Dental Associations, and four doctors.
The plaintiffs’ core argument is that mifepristone and misoprostol can cause serious complications for those who take them — a fact the FDA glossed over in its approval of the drugs.
The Fifth Circuit Court of Appeals heard the case in the spring of this year and ruled in favor of the plaintiffs where it counted. For one, the Texas-based court ruled that the plaintiffs, as doctors who had treated (or might treat) women harmed by mifepristone, did indeed have standing to sue the FDA. Further, the court ruled that the FDA had acted illegally when it lowered its safety standards for mifepristone in 2016 under the Obama administration.
This decision would reenact previous, stricter standards concerning the administration and use of mifepristone. Among these, the most important restriction is that a patient would have to receive a prescription in person, thereby prohibiting telemedicine prescriptions and the sending of the drug by mail.
However, these outcomes of the Fifth Circuit Court’s decision are currently on hold, as Biden’s Department of Justice and Danco Laboratories, the main producer of Mifeprex (a brand name of mifepristone), have filed an appeal in response to the Fifth Circuit decision. This case is expected to reach the Supreme Court in its current term. If so, the Court will decide whether the former ruling is to be upheld and the restrictions on mifepristone put into effect.
In the midst of these incendiary legal battles, one might wonder: How were these drugs approved in the first place? In the ’90s, mifepristone and misoprostol were brought to the FDA for approval by the Population Council, an organization dedicated to combating overpopulation. When the FDA approved the drug in 2000, the approval was granted under conditions. They included, as the Fifth Circuit explained in its ruling, these stipulations: that “an ultrasound to verify gestational age and diagnose ectopic pregnancies” be provided, that “prescribing physicians have experience performing surgical abortions and have admitting privileges at a nearby hospital,” that “the testing facilities be located close to a local hospital,” and that “a four-hour monitoring period after taking misoprostol” be observed. The court continued: “According to FDA, ‘surgical intervention’ was required in 7.9% of the subjects in the American trial. . . . The reasons for surgery included heavy bleeding, infection, incomplete abortion, and ongoing pregnancy — meaning that the embryo or fetus continued to grow and develop.”
Erik Baptist, a lawyer on the case, noted that “in 2021 the FDA removed the requirement for women seeking chemical abortion drugs to have in-person appointments,” a change made permanent by the end of the year. However,
one of the most common side effects from chemical abortion drugs is bleeding. Many women experience significant pain and bleeding during the initial hours after completing the drug regimen. But women can expect the bleeding to continue for about two weeks after taking the chemical abortion drugs. And 8 percent of women will bleed for longer than a month.
Women who take the two-drug regimen often require follow-up medical attention in a clinic — this should, at the very least, exclude the drug from telehealth prescriptions and self-medication. Even Planned Parenthood has published data revealing that “7–13 percent of women who take chemical abortion pills in this timeframe [at 9–11 weeks’ gestation] are at risk of health complications, likely requiring surgical intervention and follow-up medical care.” According to the FDA, “Mifeprex (mifepristone) and its generic Mifepristone Tablets, 200 mg (collectively mifepristone) are approved, in a regimen with misoprostol, to end an intrauterine pregnancy through ten weeks gestation (70 days or less since the first day of a patient’s last menstrual period). The FDA first approved Mifeprex in 2000 and approved a generic version of Mifeprex, Mifepristone Tablets, 200 mg in 2019.”
So what does this mean for states with abortion restrictions? As things stand, it is illegal for a doctor in a state with a total abortion ban to prescribe an abortifacient, but it is not illegal for a woman to take an abortifacient. This modus operandi is fairly similar to the regulation of other illegal drugs — the legal consequences fall on the purveyor rather than the consumer.
For example, the Texas Heartbeat Act, one of the most restrictive abortion bans in the country, includes a provision that it “may not be construed” to “authorize the initiation of a cause of action against or the prosecution of a woman on whom an abortion is performed or induced or attempted to be performed or induced in violation” of the law.
But what happens when the drugs are distributed by activists, not prescribed by doctors? Pro-choice groups have made it their mission to aid in the distribution of abortifacients to women living in states with abortion bans. Groups including the National Abortion Federation, the Women’s Reproductive Rights Assistance Project, and the National Network of Abortion Funds, work within the U.S., while international reproductive-rights organizations provide pills across the border as well.
For women seeking abortions in restrictive states along the southern border, a new mode of medical tourism has emerged. Since the Mexican supreme court decriminalized abortion earlier this year, more women from the U.S. have been traveling southward to receive abortions. Verónica Cruz, the founder of Mexican reproductive-rights organization Las Libres, “said she had helped roughly 20,000 women in 23 [U.S.] states secure the abortion pills,” according to the New York Times. “She said she would continue to help these women even as certain states move to penalize those who assist with abortions.” The data on women going across state and even national boundaries to seek abortions confirm that the number of women in the U.S. receiving abortions post-Dobbs has remained so high owing to the ease of movement from a territory with restrictions to one without.
There are two qualifiers that should be made here. One: We are only a year out from the Dobbs decision — it is possible that the effects of the abortion restrictions in red states will reveal themselves more fully on a longer timescale. Two: It is true that women living in states with laws restricting abortion access face greater hurdles to receiving an abortion than they would otherwise. The simple presence of such obstacles as time, finances, and distance might provide the needed pause for a woman to reflect seriously on the decision at hand. I am sure there are anecdotal cases of this happening — of women in states with bans consciously choosing life because there was no quick way to avoid that choice.
However, it cannot be denied that the New York Times data pose existential questions to the pro-life movement and legislators who support it. What, ultimately, is the goal here? As it currently stands (again, this data could change), the overturning of Roe v. Wade did nothing to decrease the number of abortions in America. There have been more abortions in the U.S. after Dobbs than before it. If the pro-life goal is for the greatest number of pregnancies to be carried to term, the current method of state-based legislation is decidedly not working.
But what are the other options? Declaring abortion a federal crime? Arresting activists who are distributing abortion pills in restrictive states? Interrogating every woman who has a miscarriage to determine whether it was artificially caused? Any rigorous enforcement of abortion restrictions would quickly become dystopian.
As Nikki Haley said in the first presidential debate, a federal abortion ban is politically infeasible: “Let’s be honest with the American people — a federal ban will take 60 Senate votes, it will take consensus.”
From the outside, a chemically induced abortion looks just like a natural miscarriage, and so potential methods of enforcing abortion restrictions on the mother quickly become dystopian. Poland’s current model offers glimpses of such abortion authoritarianism. As of now, a woman in Poland cannot be arrested for using an abortifacient. However, if her pregnancy does not go to term, she can be required to undergo tests that determine whether her miscarriage occurred naturally or was chemically forced. I would not like to live in a country where the cops can knock on the door of a young woman and force her to undergo medical testing, with the only evidence of a “crime” being that she was once pregnant and is no longer. (It might prove helpful to provide the reader with general statistics on miscarriages: In the U.S., one out of every ten clinically recognized pregnancies results in a miscarriage — it is estimated nearly one in four of all pregnancies end in a miscarriage.)
As it stands, the pro-life movement will have to fight for state-based, politically viable legislation to curb the national rate of abortions. For the many states where total bans are not feasible, setting certain restrictions, such as gestational limits, is a good place to start. Now, more than a year after Dobbs, is certainly the time for the states to build up a new landscape of legislation that affirms the dignity of life.