Rogelio V. Solis/AP Photo
The increased use of abortion pills and their delivery through the mail heightens the importance of the U.S. Postal Service to reproductive health.
Right after the Supreme Court overturned Roe v. Wade, Attorney General Merrick Garland in a statement announced, “We stand ready to work with other arms of the federal government that seek to use their lawful authorities to protect and preserve access to reproductive care. In particular, the FDA has approved the use of the medication Mifepristone. States may not ban Mifepristone based on disagreement with the FDA’s expert judgment about its safety and efficacy.”
Before Roe, illegal abortions were typically performed through covert networks such as the Jane Collective in apartments and homes. Throughout the rest of the 20th century, the most common legal abortion was an in-clinic abortion, meaning a surgery procedure. But in 2020, according to preliminary data from the Guttmacher Institute, the number of medication abortions surpassed surgical abortions, accounting for 56 percent of legal abortions in the United States.
Given the situation after the Dobbs ruling, where women in as many as 22 states already have or will soon have no access to abortion where they live, this means that the largest abortion provider in America, in effect, is the United States Postal Service, which can deliver abortion medications throughout the country. States are trying to limit or even criminalize this option, and how it transpires will be critical for abortion access.
MEDICATION ABORTIONS REFER to mifepristone and misoprostol, two medications that, when taken in tandem, can safely end pregnancies. Last December, the FDA made permanent a pandemic-era policy that removed the in-person requirement for mifepristone, also known as RU-486. Abortion providers could now prescribe RU-486 through a telehealth consultation, then mail the pills to the patient where they could take the medication without a physician’s supervision.
As of March, according to the Pew Research Center, 23 states and the District of Columbia allow medication abortion via telehealth, while the remaining states either ban telehealth entirely or require in-person visits with a health care provider for medication abortions. And currently, eight states have banned abortion in all cases.
For now, the legislation in those states prohibits the prosecution of women seeking an abortion. This tracks with what reproductive-health rights advocates explained to the Prospect: As of now, Americans in almost every state have the legal right to self-manage an abortion (i.e., using RU-486).
However, the legal right to a self-managed abortion does not ensure that they would not be criminalized or entirely illegal in the future. Such as the case in Texas, where a district attorney dropped murder charges against a woman for “the death of an individual through a self-induced abortion.” Two states, Oklahoma and South Carolina, as well as American Samoa have laws against self-managed abortions, according to the Center for Reproductive Rights.
In the other 48 states, and even in Oklahoma and South Carolina, regardless of their restrictive laws and the Supreme Court’s decision, there are alternative routes of access for abortion pills. Reproductive-health rights groups like Plan C inform the public about how to receive abortion pills by mail according to their state laws. In permissive states, such as California, the process involves a telehealth consultation with a licensed physician in the U.S., a two-to-three-day delivery time, and a total maximum cost of $150. All services connected via Plan C include a sliding-scale payment system that does not require proof of income.
Meanwhile, in states that ban the use of telemedicine for medication abortions, such as Ohio, the process is much more difficult and dangerous, but still possible. The health dangers are not due to the medications. As Elisa Wells, co-director and co-founder of Plan C, told the Prospect, “We know that medication abortion is extremely safe and effective, even when completely self-managed without any medical supervision. What causes harm are the unjust laws that restrict access to abortion, both through telehealth and through clinics.”
Reproductive-health rights attorneys have explained to Plan C that there are work-arounds for such bans that involve consulting with out-of-state providers or receiving generics of FDA-approved medication by licensed doctors from other countries. The process involves setting up a virtual mailbox through services such as PostScan Mail, then forwarding the abortion medications to oneself. The delivery time in a restrictive state is around three weeks, which cuts short against RU-486’s ten-week effective time window.
One such service, Aid Access, a European provider and partner of Plan C, sends pills after a telehealth visit to every state, and has vowed to continue to do so. They get an assist from the power and reach of the U.S. Postal Service.
THE INCREASED USE OF ABORTION PILLS and their delivery through the mail heightens the importance of the U.S. Postal Service to reproductive health. In a statement to the Prospect, a spokesperson for the Postal Service said, “Federal law and Postal Service regulations determine what can and can’t be mailed.” The statement continues: “The mailer is responsible for ensuring that all Postal Service requirements, as well as all federal and state laws and local ordinances that apply to the shipment of hazardous, restricted, and perishable matter, have been met.”
Effectively, so long as health care providers are following the law, through whatever avenue is possible, the Postal Service will not prevent the delivery of abortion medication, regardless of state laws.
An inequality research analyst for the Institute for Policy Studies, Brian Wakamo, whose previous work has focused on the Postal Service, explained to the Prospect that states cannot interfere with the mail being sorted and delivered within their borders. There exists the potential for states to pass laws that penalize individuals seeking abortion pills through the mail and health care providers who send mail-order abortion bills. Yet the enforcement mechanism for such punitive measures likely does not exist, aside from bounty or reporting systems.
But that might not be the case forever. There is high likelihood that the most anti-abortion states could sue the USPS for allegedly aiding and abetting criminal behavior by allowing the delivery of pills that violate their state laws. There is even the potential that states could argue that the Postal Service’s delivery of abortion bills is a violation of the Hyde Amendment. (This would be harder to prove, since the USPS is self-funding.)
The access to medication abortions will likely be fought along several fronts: states versus the Postal Service, states versus the FDA, and states versus individuals and health care providers. For example, GenBioPro, a generics maker of mifepristone, contends that the FDA’s regulation of mifepristone preempts Mississippi’s restrictions of the drug. Several legal scholars agree.
But the pending decision over West Virginia v. EPA signals that, in the future, courts could likely further undermine federal agencies such as the FDA. That could make the preemption argument tougher.
USPS leadership will also play a role in this battle. Postmaster General Louis DeJoy cannot stifle the delivery of abortion pills on a package-to-package basis. But as a downstream effect of DeJoy’s ten-year plan, increased prices for customers, processing facility closures, and increased delivery time for packages could undermine the post office’s role as an abortion provider. Even the uncertainty of when someone will receive their medications in the mail could make mail-order access unviable, given the strict time limits for using the pills.
According to Wakamo, DeJoy’s proposed changes would impact regions like rural Texas and other parts of the West, places where abortion access is already heavily limited. But without a mechanism to monitor what is inside packages sent by the post office, anti-abortion states will pursue other means to criminalize the practice. The largest of those concerns includes surveillance measures where state and local authorities use data from period-tracking apps and internet search history as the basis for search warrants.
As for the delivery of parcels, while the U.S. Postal Inspection Service, the agency’s law enforcement arm, does sometimes convict people for receiving controlled substances in the mail, with a legal substance it’s different. “There is meaningfully no way to monitor what is shipped through the mail on a mass basis,” said Wakamo. “And with pills that are FDA-approved, as these abortion pills are, there’s much less of an appetite for the USPS to do any kind of monitoring or surveillance of abortion medication.”
