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The Corner Drugstore and the U.S. Postal Service: Chemical Abortion in Post-Roe America
Former Executive Director
Illinois Right to Life | 09 February 2023
The end of Roe v. Wade was something that many of us did not think we would see in our lifetime. While it was cause for great celebration it also meant that, in many ways, our work was just beginning. The growing menace of chemical abortions is proof positive of this.
According to the Centers for Disease Control, the abortion rate in America has declined at a “slow and steady pace” since the late 1980s.[i] At the same time, however, a sea change was taking place in the way abortions are performed in America. While the overall abortion rate has been declining, the number of chemical abortions has been increasing. The latest numbers show that 54 percent of all abortions are now chemical abortions.[ii]
This is no surprise. Planned Parenthood and other members of the abortion industry have successfully buried the dangers of chemical abortion and branded it as a “safe, easy” alternative to surgical abortions.[iii] Of course, nothing could be further from the truth.[iv]
The end of Roe v. Wade led to a patchwork of abortion laws across the U.S. along with a skyrocketing demand for chemical abortions, particularly in those states which have outlawed abortion.[v] This, in turn, has given rise to a complex debate regarding access to abortion pills and their distribution, as well as ominous signs about what the future of chemical abortion might hold.
The FDA first approved Mifepristone under the brand name Mifeprex, the first of the two pills in the chemical abortion cocktail, in 2000.[vi] In 2011, a Risk Evaluation and Mitigation Strategy (REMS) was added by the FDA to Mifeprex that stated only medical providers who had received special certification from the manufacturer could prescribe or dispense the drug. Bottom line, this meant that the drugs could not be sent through the mail and required a visit to a REMS-certified healthcare provider.[vii]
The REMS for Mifepristone only made sense. The chemical abortion protocol states that chemical abortions can only be performed on women who are up to 10 weeks’ gestation[viii] (the World Health Organization claims it is safe to use until 12 weeks[ix]). An in-person visit to a medical professional is necessary to accurately determine the gestational age of preborn babies and whether a woman is experiencing an ectopic pregnancy. Mifepristone does not end ectopic pregnancies which, left untreated, can lead to severe injury or death in women.[x]
Needless to say, with their usual disregard for women’s health and safety, abortion advocates were intent on loosening the restrictions the REMS put on the distribution of chemical abortion drugs. The COVID-19 pandemic gave abortion sycophants in the Biden administration the perfect cover to do just that.
In April of 2021, in the waning days of the COVID pandemic, after many restrictions had been lifted, the Biden administration announced that chemical abortion drugs could be sent by mail for the duration of the pandemic. This opened the door for “telemedicine” abortions in which a woman speaks with a medical professional via teleconference to obtain a chemical abortion prescription. After that, the drugs are mailed.[xi]
The pro-life movement immediately went to work. During 2021, six states banned the mailing of abortion pills, seven states passed laws requiring abortion pills to be obtained from a certified provider in-person, and four states passed laws limiting the use of the pills to earlier than 10 weeks gestation. It was work well worth it – in December of 2021 the FDA dropped the pretense of COVID and permanently allowed abortion pills by mail.[xii] At the same time, President Biden announced that he would put the wheels in motion to allow retail pharmacies to dispense the abortion pill, ignoring the REMS stating that mifepristone must be distributed by a qualified health care provider.
Only six short months later, the Supreme Court overturned Roe v. Wade. The slow decline in abortion rates suddenly became a landslide. According to the Society for Family Planning, abortions decreased by six percent in the two months immediately following the Dobbs decision, a total of over 10,500 preborn lives saved.[xiii] For abortion advocates, finding new ways to sell women abortions quickly became critical.
On January 6 of this year, President Biden formalized the process for retail pharmacies to distribute abortion pills. Retail giants CVS and Walgreens quickly announced that they planned to distribute the pills, bringing abortion to pharmacies frequented by millions.[xiv] Rather than obtain abortion pills from a qualified medical professional in-person, women will be able to simply receive a telemedicine consultation and then pick up their pills or have them mailed from their local pharmacies.
With abortion laws varying from state to state, including laws regarding telemedicine abortions, the distribution of chemical abortion drugs and what is allowed has become extremely complicated.
25 states have no restrictions on telemedicine abortions. 13 states allow abortion or have bans that have been blocked in the courts, but some restrictions on telemedicine abortions. In another 13 states, abortion (including chemical and telemedicine abortion) is completely banned.[xv]
One issue is the conflict between the FDA’s right to regulate mifepristone and the states’ right to restrict it through abortion bans. In October of 2020, GenBioPro, the maker of the generic mifepristone, filed suit against the state of Mississippi for banning the distribution of the drug. Following Dobbs, GenBioPro dropped the suit. It remains to be seen if further litigation will challenge state abortion laws.[xvi]
A bigger issue is something you may remember from history class: The Comstock Act of 1873.
The Comstock Act prohibits using the U.S. Postal Service to send anything defined as “obscene, lewd, indecent, filthy, or vile,” including, “Every 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.”[xvii]
The Federal law forbidding sending abortion drugs through the mail could not be clearer – it is a felony. This did not stop Biden’s Department of Justice from rendering an opinion to the contrary. Assistant Attorney General for the Office of Legal Counsel, Christopher Schroeder, wrote in a December 2022 slip opinion that the Comstock Act does not apply to the mailing of chemical abortion drugs. According to Schroeder, the law does not apply when, “the sender lacks the intent that the recipient will use them unlawfully,” and because the drugs might be used for purposes other than abortion, 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.”[xviii]
In addition to the fact that this statement is political folly meant to appease Biden’s pro-abortion base, the fact remains that a slip opinion does not supersede Federal law. Missouri’s Attorney General, Andrew Bailey, along with the attorneys general of 19 other states were happy to point this out to executives at Walgreens in a letter sent just last week on February 1.
The letter from the attorneys' general states:
We reject the Biden administration’s bizarre interpretation, and we expect courts will as well. Courts do not lightly ignore the plain text of statutes. And the Supreme Court has been openly aversive to other attempts by the Biden administration to press antitextual arguments…A future U.S. Attorney General will almost certainly reject the Biden administration’s results-oriented, strained reading. And consequences for accepting the Biden administration’s reading could come far sooner. Section 1461 can be enforced not only by the U.S. Attorney General but also through civil litigation by State Attorneys General and private parties under § 1964 (c).[xix]
The pro-life movement must continue to ensure Federal law is enforced and the United States Postal Service does not become an out-and-out tool of the abortion industry. Pro-life advocates must also be aware that the ultimate agenda of the abortion industry in regard to chemical abortion is much, much darker. What is their ultimate goal? Over-the-counter chemical abortion.
Telemedicine abortions have gone far in normalizing the idea of “self-managed” abortion --- abortions in which the entire procedure takes place outside of a physician’s office. Aid Access, a European organization providing abortion pills through the mail, has been providing chemical abortions to American women – including women in states where it’s outlawed – since 2018.
Founded by Dutch physician Rebecca Gomperts, Aid Access has provided abortion pills to over 30,000 people in America[xx] Despite the fact that the FDA warns against ordering abortion pills online, [xxi] Gomperts and Aid Access have become the darlings of abortion advocates. In fact, Gomperts partnered with the University of Texas to present a research paper detailing the need for “self-managed”, telemedicine abortions.[xxii] This research was featured in the prestigious Journal of the American Medical Association.[xxiii]
The logical – and deadly – next step from “self-managed” chemical abortions is over-the-counter (OTC) chemical abortions. Chemical abortions are already available over the counter in Mexico and several other Latin American countries, among others, and US abortion advocates have become more vocal in their calls for OTC chemical abortion.[xxiv]
The advocacy group, Plan C, promotes telemedicine abortions with the specific goal of making OTC abortion a reality one day.[xxv] The University of California at San Francisco’s “Advancing New Standards in Reproductive Health” program is conducting research that will supposedly enable women to determine how far along their pregnancies are, thus reducing the number of women who are excluded from chemical abortions and “increasing access” to the drug, thus making it “safer” for OTC use.[xxvi]
Despite calls to approve mifepristone for OTC use, the likelihood of this happening anytime soon is small. Years of research is required and Danco, the producer of the name-brand Mifeprex Mifepristone in the US, has said they do not plan to seek OTC approval. GenBioPro, the other US manufacturer of Mifepristone, has not said if they plan to seek this approval.[xxvii]
Missing from much of the mainstream discussion of chemical abortion, per usual, is the reality of the procedure on both mother and child.
In addition to taking the life of a preborn child, chemical abortions are incredibly dangerous for women, with a complication rate four times that of surgical abortion.[xxviii] They are more likely to send women to the emergency room – the rate of ER visits due to chemical abortions increased 500 percent between 2002 and 2015.[xxix] This is just the tip of the iceberg when it comes to the dangers of chemical abortion.
Then there are the growing number of stories from women who have experienced chemical abortion – women who’ve had to dispose of their children’s bodies and have suffered devastating psychological effects because of it.[xxx]
For years, abortion advocates claimed that the pro-life movement wanted to send women “back to the back alley,” back to a time when abortions were performed by unscrupulous doctors and when women tried to end their pregnancies themselves. In the years leading up to the end of Roe, these abortion advocates have proven that they are the ones unconcerned with women’s health. Telling women that aborting their children on their own through the use of dangerous drugs they call “safe” is the most telling proof of this.
Just as we worked to end the scourge of Roe, we must continue to work until women’s health and safety, as well as their children’s, is truly protected.
[i] Centers for Disease Control and Prevention, (2022, November). Abortion Surveillance – United States, 2020. https://www.cdc.gov/mmwr/volumes/71/ss/ss7110a1.htm#introduction
[ii] Jones, R; Nash, E; Cross, L; Philbin, J; Kirstein, M (2022, February) Medication Abortion Now Accounts for More Than Half of All US Abortions. Guttmacher Institute. https://www.guttmacher.org/article/2022/02/medication-abortion-now-accounts-more-half-all-us-abortions
[iii] Planned Parenthood, The Abortion Pill. https://www.plannedparenthood.org/learn/abortion/the-abortion-pill
[iv] Charlotte Lozier Institute, Fact Sheet: Risks and Complications of Chemical Abortion. https://lozierinstitute.org/fact-sheet-risks-and-complications-of-chemical-abortion/
[v] Reader, R; Leonard, B (2022, July 11). Americans Scramble for Abortions in States That Have Banned It. Politico. https://www.politico.com/news/2022/07/11/teleabortions-high-demand-abortion-pill-00044005
[vi] Letter from Center for Drug Evaluation and Research to Sandra P. Arnold, Population Council, (2000, September 28). https://www.accessdata.fda.gov/drugsatfda_docs/appletter/2000/20687appltr.pdf
[vii] US Food and Drug Administration, (2011). Risk Evaluation and Mitigation Strategy. https://www.fda.gov/media/164648/download
[viii]US Food and Drug Administration, Information About Mifepristone for Medical Termination of Pregnancy Through Ten Weeks Gestation. https://www.fda.gov/drugs/postmarket-drug-safety-information-patients-and-providers/information-about-mifepristone-medical-termination-pregnancy-through-ten-weeks-gestation
[ix]World Health Organization, (2014). Clinical Practice Handbook for Safe Abortion. https://apps.who.int/iris/bitstream/handle/10665/97415/9789241548717_eng.pdf
[x]Mayo Clinic, Ectopic Pregnancy. https://www.mayoclinic.org/diseases-conditions/ectopic-pregnancy/symptoms-causes/syc-20372088#:~:text=An%20ectopic%20pregnancy%20can%20cause,lead%20to%20life%2Dthreatening%20bleeding.
[xi]Belluck, P. (2021, April 13). FDA Will Allow Abortion Pills by Mail During the Pandemic. New York Times. https://www.nytimes.com/2021/04/13/health/covid-abortion-pills-mailed.html
[xii]Belluck, P. (2021, December 16). FDA Will Permanently Allow Abortion Pills by Mail. New York Times. https://www.nytimes.com/2021/12/16/health/abortion-pills-fda.html
[xiii]Society of Family Planning, (2022, October 28). #WeCount Report. https://www.societyfp.org/wp-content/uploads/2022/10/SFPWeCountReport_AprtoAug2022_ReleaseOct2022-1.pdf
[xiv] Minemyer, P. (2023, January 5). Walgreens, CVS Health Say They Plan to Sell Abortion Pills Following FDA Determination. Fierce Health. https://www.fiercehealthcare.com/retail/walgreens-cvs-health-say-they-plan-sell-abortion-pills-following-fda-determination
[xv]Kaiser Family Foundation, (2023, January 23). The Availability and Use of Medication Abortion. https://www.kff.org/womens-health-policy/fact-sheet/the-availability-and-use-of-medication-abortion/
[xvii] 18 U.S. Code §1461 – Mailing Obscene or Crime-Inciting Matter
[xviii] Schroeder, C. United States Department of Justice (2022, December 23). Application of the Comstock Act to the Mailing of Prescription Drugs that can be Used for Abortion. https://www.justice.gov/olc/opinion/file/1560596/download
[xix] Letter from Missouri Attorney General, Andrew Bailey et. al. to Danielle Gray, Executive Vice President, Walgreens Boots Alliance. (2023, February 1). https://ago.mo.gov/docs/default-source/press-releases/2023-02-01-fda-rule---walgreens-letter-danielle-gray.pdf?sfvrsn=ff1e6652_2
[xx] Baker, C. (2022, February 23). Telemedicine Abortion Provider Rebecca Gompert Gets Abortion Pills Into the Hands of Those Who Need Them: “It’s a Privilege” Ms. Magazine https://msmagazine.com/2022/02/23/telemedicine-abortion-rebecca-gomperts-abortion-pills/
[xxi]US Food and Drug Administration, Information About Mifepristone for Medical Termination of Pregnancy Through Ten Weeks Gestation. https://www.fda.gov/drugs/postmarket-drug-safety-information-patients-and-providers/information-about-mifepristone-medical-termination-pregnancy-through-ten-weeks-gestation
[xxii]Reader, R. (2022, November 1) State Abortion Bans Prove Easy to Evade, Politico. https://www.politico.com/news/2022/11/01/state-abortion-bans-medication-00064407
[xxiii]Aiken, A. Ph.D. et. al. (2022, November 1) Requests for Self-Managed Medication Abortion Provided Using Online Telemedicine in 30 US States Before and After the Dobbs v. Jackson Women’s Health Organization Decision, JAMA Network. https://jamanetwork.com/journals/jama/article-abstract/2797883?guestAccessKey=0bf9b1b5-f43a-4a80-9cd6-294fac7370cf&utm_source=For_The_Media&utm_medium=referral&utm_campaign=ftm_links&utm_content=tfl&utm_term=110122
[xxiv] Schmidt, S. and Westfall, S. (2021, September 14). Abortion Pills are Booming Worldwide, Will Their Use Grow in Texas? The Washington Post. https://www.washingtonpost.com/world/2021/09/14/abortion-pills-texas/
[xxv] Plan C Website – “About” Page. https://www.plancpills.org/about
[xxvi]ANSIRH, The University of California at San Francisco website. Over-the-Counter Medication Abortion
[xxvii] Abuleinen, A. (2022, June 24). Analysis: Abortion Pills Over the Counter? Experts See Big Hurdles in Widening US Access, Reuters. https://www.reuters.com/business/healthcare-pharmaceuticals/abortion-pills-over-counter-experts-see-major-hurdles-widening-us-access-2022-06-23/
[xxviii] Niinimäki M, Pouta A, Bloigu A, et al. (2009) Immediate complications after medical compared with surgical termination of pregnancy. Obstet Gynecol. 114(4):795-804. doi:10.1097/AOG.0b013e3181b5ccf9
[xxix]Charlotte Lozier Institute, Fact Sheet: Risks and Complications of Chemical Abortion. https://lozierinstitute.org/fact-sheet-risks-and-complications-of-chemical-abortion/
[xxx] Novielli, C. (2023, January 28) Women Describe Seeing Preborn Child After Taking Abortion Pill at Home, Live Action. https://www.liveaction.org/news/women-describe-preborn-child-abortion-pills/