Before spreading the word about how to circumvent state bans on abortion pills, Elisa Wells conducted a trial run of sorts, using dried chickpeas.
Wells, co-founder of the nonprofit abortion advocacy website Plan C, was testing whether commercial mail-forwarding services could serve as a link in a surreptitious supply chain from abortion-friendly states to states where abortion pills are banned.
She and colleagues poured garbanzos into pharmacy bottles to mimic the sound of medication, in case a suspicious mailroom worker gave the package a shake. The beans made it through without incident, and now the Plan C website contains a detailed account of how patients in states with abortion bans can use telehealth services and mail-forwarding services to obtain pills.
Abortion bans have taken effect or are pending in 26 states since the Supreme Court stripped away the constitutional right to abortion last month, setting off a scramble on the part of patients, advocates and health care providers to continue services as local laws evolve rapidly. The most convenient method for people seeking early-term abortions is medication, which can be prescribed online and mailed undetected to a patient’s doorstep.
The medications — mifepristone and misoprostol — are approved by the Food and Drug Administration and can be taken up to 10 weeks into pregnancy. The Biden administration has said the drugs have been authorized as safe and effective for use in all 50 states. But remote providers could be targeted in criminal probes by local and state prosecutors, get hit with civil lawsuits, and lose their medical licenses if they violate rules by prescribing and shipping pills to people in states where abortion is illegal.
So telehealth abortion services, which sprang up in response to the coronavirus pandemic, and their activist allies are now seeking workarounds, some of which present significant legal questions. Some advise patients to drive just across state lines to have their telehealth appointments and use out-of-state addresses to receive pills at places where they remain legal. It’s thrusting everyone involved into legally gray areas.
“If you’re not following the rules and not acting in good faith, there is a lot of trouble you can get into,” said Dianne Bourque, a health care lawyer specializing in licensing and regulations at the firm Mintz.
Public websites maintained by activists detail another strategy that pushes the legal envelope: using mail-forwarding accounts with commercial shipping services. Such paid services often are used by people in the military or frequent travelers who want their mail sent to wherever they are at a given time.
So an abortion patient in Texas, for instance, where abortion is banned, could set up a mail-forwarding account in Colorado, where it’s legal. The patient could then use the Colorado address to accept the shipment of abortion pills after the consultation with a telehealth provider. The mail-forwarding service would then forward the pills to the patient in Texas.
Some providers avoid asking direct questions about the location of their patients during the consultation, according to activists, creating a layer of plausible deniability. All the patient needs is a shipping address in a state where abortion is legal. Addresses used with a mail-forwarding service look like standard residential addresses, so there’s nothing to indicate to the provider that the patient is using such a service.
“It’s don’t ask, don’t tell,” said Wells, whose Plan C website serves as a clearinghouse of information about abortion pills from FDA-authorized, domestic sources as well as unauthorized foreign channels. Plan C received more than half a million webpage visits in the first few days after the Supreme Court ruling, Wells said.
Telehealth providers are required to conduct a “reasonable” amount of diligence to make sure their patient is eligible to receive care, including that they are in a state where prescribing abortion pills and receiving them are legal, Bourque said. But if a patient lies to the provider about their location, the provider may not be liable, she said.
“Grilling the patient to make sure they are not using some sort of workaround, going above and beyond what’s reasonable to enforce state laws, that is not the provider’s job,” Bourque said. On the other hand, “if it’s blatantly obvious to the provider that those criteria aren’t met, you can’t provide services.”
A number of blue states including Massachusetts and California have adopted rules that prevent officials in their state from cooperating with investigations launched by states where abortion is outlawed. But that might not provide blanket immunity from professional consequences. Findings against a Massachusetts physician who practiced medicine without an Alabama medical license, for instance, would still have to be reported to the Massachusetts Board of Registration in Medicine, Bourque said.
“That will come back to haunt you in the state where you are properly licensed,” she said.
Anti-abortion politicians say strategies to circumvent state laws like those highlighted by Plan C should be met with tougher deterrents.
“That needs to be stopped,” Alabama state Rep. Andrew Sorrell, who has sponsored legislation to outlaw the pills, said in a text message to The Washington Post. “Put a fine and a criminal penalty on it and make it very risky to try.”
He said the penalties and fines should be levied on both shippers and the patients.
Thus far, most state abortion bans do not hold criminally liable the patients who are terminating the pregnancy. They instead target doctors, nurses, midwives, activists and others who provide abortion assistance. Three states specifically ban “self-managed” abortions, which includes medication abortions: South Carolina, Oklahoma and Nevada, said Farah Diaz-Tello, senior counsel and legal director of If/When/How, an organization that advocates for abortion rights and maintains a legal hotline for women seeking advice on how to legally obtain an abortion.
Workarounds like mail forwarding could place a patient in violation of criminal laws regulating how prescription drugs are dispensed in general, but each state has its own set of rules, Bourque said. Broadly speaking, she said, “prescription fraud is a serious offense and treated accordingly.”
As a practical matter, stopping the flow of pills could be difficult for red-state officials, in part because the medications are so common. Medication abortions accounted for 54% of all abortions in the United States in 2020, according to the Guttmacher Institute, a pro-abortion-rights nonprofit that tracks abortion laws. Since the Supreme Court’s 6-3 ruling last month, telehealth providers say they are constantly evaluating the map of what’s legal in what states, which is changing almost daily.
“It’s truly a morass to wade through,” said Melissa Grant, chief operating officer of nonprofit telehealth abortion provider Carafem. Carafem says it will not ship abortion pills to addresses in states where abortion is banned and also does not permit mail-forwarding if it learns a patient is using such a system.
On its website, Carafem asks new patients to click on one of the 14 states where it legally offers services, indicating where they will be for their virtual appointment.
But Carafem does not attempt to digitally verify patients’ locations during their consultation — for instance, by using the patient’s computer’s unique IP address, which reveals the user’s general location.
“We’re a health care operation, not an IT vendor or magician,” Grant said.
Carafem encourages women from states with abortion bans and bans on medication abortions to travel to the border of the closest state where the pills are legal and pull into a parking lot for their telehealth visit, as the Supreme Court decision does not prevent women and other pregnant individuals from crossing state lines to receive abortion services. To get the pills in the mail, patients can provide the address of a friend or a post office box in an abortion-friendly state, Grant said.
“We’ve talked to people sitting in their office at work, in their restroom at school, out in the car in the parking lot,” she said. When they do receive their kit, Carafem patients also get a heat pack to help with cramping and herbal tea and mints to soothe an upset stomach.
Telehealth abortion services are a relatively new phenomenon. Though the FDA requires that abortion pills be dispensed under the supervision of the prescriber, it loosened some rules during the pandemic, allowing the medications to be prescribed over the internet and sent to patients by mail. President Joe Biden said in a meeting of governors last week that his administration is committed to keeping abortion medications pills legal and available despite the Supreme Court ruling giving states authority to ban abortion.
“If states try to block a woman from getting medication the FDA has already approved and that has been available for more than 20 years, my administration will act and protect that woman’s right to that medication,” Biden said.
While the legal pendulum swings away from legal abortion, many telehealth providers don’t explicitly ask patients where they are during the consultation; they ask patients to attest that they are in an abortion-legal state on consent forms and online questionnaires, according to advocates and providers.
“We trust our patient when they tell us they need these services,” said Christie Pitney, a nurse midwife and co-founder of Forward Midwifery, which is based in Washington, D.C. If a patient volunteers that she is not in one of the legal abortion states Pitney serves, she said, she tells the patient she cannot provide services and suggests an alternative such as Aid Access, which is based in Austria and dispatches pills from outside U.S. borders.
Pitney is closely monitoring efforts in liberal states to protect providers from investigation by anti-abortion states. Advocates are lobbying for those states to permit providers to prescribe and send mail-order pills into anti-abortion states.
“As soon as a state I’m in says I can prescribe into or across state lines and they will protect me, I am happy to start doing that,” Pitney said. “I understand that means I might be a felon in Louisiana or Texas and not be able to ever travel there again, but it’s that important.”
One large telehealth abortion service takes stricter steps than just a patient consent form to avoid running afoul of red-state restrictions. The largest provider in the country, Abortion on Demand, which offers services in 23 states and treats hundreds of patients a month, says on its website that it uses internet technology to verify the location of its patients during their consultations. It also will not mail pills to post office boxes or via general delivery.
Instead, Abortion on Demand encourages patients in states with bans to travel to nearby states for their sessions, so a woman in Texas, for instance, might travel to New Mexico or Colorado.
“They don’t have to live in the state, they just have to be there for their visit,” said Leah Coplon, a nurse midwife who is director of clinical operations for Abortion on Demand. Patients have received service from the parking lots of McDonald’s and Starbucks, or from the computers at public libraries in border towns, she said. “We do have some patients who travel, and we do need to know that they are complying with the law fully.”
Mail-forwarding services act as authorized receivers of mail, which means they must follow certain Postal Service guidelines, said Leo Raymond, managing director at Mailers Hub, an organization that provides market information and support for commercial mailers, including mail-forwarding businesses.
Under the guidelines, mail-forwarding agents would technically have to ship abortion pills to their final destination via private carrier rather than the Postal Service, Raymond said. The forwarders would have some plausible deniability if they were unaware packages contain abortion pills, he said — for now. The regulatory environment is evolving fast, with some anti-abortion lawmakers pledging to close any loopholes.
Several mail-forwarding websites contacted by The Post did not respond to requests for comment. One firm, iPostal1, said in a statement that its agents operate under the government’s commercial mail receiving agent rules.
“They are professionally managed and aware of their duties to be compliant with state and national forwarding regulations,” Barry Gesserman, iPostal1’s chief marketing officer, said.
Kristina Shepherd, a nurse midwife who operates Lilith Care, which provides abortion pill services in Massachusetts and Rhode Island, said providers are worried about politically driven prosecutions or lawsuits from anti-abortion states. She said Plan C offers a valuable service to women seeking to navigate the new terrain.
“Mail-forwarding does enable patients to have access,” she said. Already, medical providers are barred from prescribing in states where they don’t hold licenses. Coupled with the new abortion bans, she said, “that does unfortunately translate into a possible don’t-ask-don’t-tell practice.”
Jacob Bogage contributed to this report.