By Katie Yoder
Washington D.C., Jan 13, 2023 / 14:30 pm
A majority of women seeking abortion in the United States today choose abortion pills over other methods. The U.S. Department of Justice (DOJ) recently advised that the U.S. Postal Service can deliver these abortion drugs by mail — after the U.S. Food and Drug Administration (FDA) also authorized doctors to prescribe the drugs online and mail the pills.
Here are five things to know about abortion drugs.
What are abortion drugs?
The FDA first approved mifepristone, which is paired with another drug called misoprostol for earlier abortions, in 2000. Taken by pill, this type of abortion — approved by the FDA for use up to 10 weeks of gestation — is also referred to as abortion with pills, chemical abortion, medication abortion, and telemedicine abortion.
How common are abortion drugs?
This type of abortion accounts for more than half of all abortions in the U.S., according to the Guttmacher Institute, a reproductive research organization once associated with Planned Parenthood.
Is it legal to send abortion drugs in the mail?
The DOJ recently clarified its position that the U.S. Postal Service can deliver abortion pills by mail. In an opinion dated Dec. 23, 2022, the department’s Office of Legal Counsel (OLC) found that federal law on the issue does not apply if the sender does not intend for the drugs to be used illegally.
The statute in question (18 U.S.C. § 1461) states: “[e]very article or thing designed, adapted, or intended for producing abortion,” as well as “[e]very article, instrument, substance, drug, medicine, or thing which is advertised or described in a manner calculated to lead another to use or apply it for producing abortion” is “nonmailable matter.”
The OLC opinion responded to this law.
“We conclude that section 1461 does not prohibit the mailing, or the delivery or receipt by mail, of mifepristone or misoprostol where the sender lacks the intent that the recipient of the drugs will use them unlawfully,” OLC assistant attorney general Christopher Schroeder wrote.
“[T]here are manifold ways in which recipients in every state may use these drugs, including to produce an abortion, without violating state law,” he added. “Therefore, the mere mailing of such drugs to a particular jurisdiction is an insufficient basis for concluding that the sender intends them to be used unlawfully.”
In response, some legal experts challenged the OLC. Writing for National Review, Ed Whelan, a senior fellow at the Ethics and Public Policy Center, criticized the opinion “advising the United States Postal Service that section 1461 doesn’t mean what it says.”
“[T]hose who are considering mailing abortion drugs should not have confidence that OLC gets it right, and they would be fools to rely on it,” he wrote at one point. “OLC’s advice to the postal service is only that — advice to the postal service.”
Whelan, who once served at OLC, explained in another article for National Review:
“There is no meaningful support for OLC’s claim that the federal ban on mailing abortion drugs (section 1461) does not apply when ‘the sender lacks the intent that the recipient of the drugs will use them unlawfully.’”
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When did abortion drugs become available by mail?
In December 2021, the FDA lifted restrictions on mifepristone distribution. The decision authorized doctors to prescribe the drugs online and mail the pills, allowing pregnant women to perform early abortions without leaving their homes.
More recently, in early January, the FDA also announced for the first time that it would allow any patient with a prescription to obtain the drug mifepristone from her local retail pharmacy if it is appropriately certified to dispense it.
Are abortion drugs by mail safe?
Dr. Ingrid Skop, senior fellow and director of medical affairs for Charlotte Lozier Institute (CLI) previously expressed concern about women using mifepristone when it is not handed to them directly by a prescriber.
“We don’t know for sure how far along she is [in her pregnancy]. We’re using her estimate, and many times that’s incorrect,” Skop told CNA, “and the mifepristone-misoprostol does not work very well beyond about 10 weeks’ gestation.”
Skop, who has more than 25 years of experience as an OB-GYN, also pointed to the problem of ectopic pregnancy, a potentially life-threatening situation where an embryo implants outside the uterus or womb, usually in one of the fallopian tubes.
“Mifepristone does not work on an ectopic pregnancy,” she stressed. “That pregnancy can continue to grow, and the tube can rupture. And this is a fairly common cause of maternal deaths.”
Another concern is that the person requesting the abortion pills may not be the person taking them.
“This can leave the door open for coercion, it can leave the door open for other people to get ahold of the medicine and give it to a woman who may not necessarily desire an abortion,” she said.
In anticipation of the FDA’s 2021 decision, CLI released a study authored by Skop and other experts calling increased access to abortion pills a public health risk.
“The rate of abortion-related emergency room visits following a chemical abortion increased over 500% from 2002 through 2015, according to an analysis of Medicaid claims data,” the press release read. “Over the same period, chemical abortions within the study population increased from 4.4% to 34.1% of total abortions.”
The study also found that the rate of abortion-related emergency-room visits is increasing faster for chemical abortions than for surgical abortions and that chemical abortion makes subsequent abortions more dangerous.
