If Roe Is Gutted, Abortion Pills Will Be More Important Than Ever

On Wednesday, the Supreme Court will hear arguments in a case that could severely undermine Roe v. Wade, the landmark 1973 decision that legalized abortion in the United States.

Abortion rights supporters are worried and rightly so: If the court allows the unconstitutional Louisiana abortion law at the center of the case go into effect, it would signal to the rest of the country that Roe is virtually unenforceable, giving state lawmakers the green light to pass extreme restrictions or all-out bans on the procedure. Clinics will shutter, providers could flee restrictive states, and the U.S. would turn into a patchwork of access—a mix of abortion “safe havens” and vast abortion deserts. With Trump-appointed Justices Brett Kavanaugh and Neil Gorsuch on the bench, this version of events seems like a near possibility. (We’ll find out their decision this summer.)

But the other possibility—that the justices vote to uphold Roe v. Wade, maintaining the status quo—would still leave millions without access. That’s because Roe, while revolutionary for abortion rights, has failed to guarantee those rights for all: Even with the precedent on the books, the right to abortion is little more than an idea for many low-income people, people of color, and people who live in rural parts of the country. So while efforts to preserve, enshrine or “codify” Roe have been at the forefront of the fight to protect federal abortion rights, reproductive health advocates say they don’t go far enough.

In fact, what may be one of the most effective ways to expand abortion access has almost nothing to do with the Supreme Court: For nearly two decades, the Food and Drug Administration has restricted the safest, easiest form of abortion—abortion with pills. Lifting these restrictions would mean opening up access to early abortion care to millions of Americans. In parts of Europe, where abortion drugs aren’t regulated to the same extent, medication abortions make up as many as 90 percent of terminations; the rate in the U.S. is just under 40 percent.

The FDA’s policy requires mifepristone—one of the two drugs involved in the abortion pill regimen—to be dispensed by a specially licensed physician, at a hospital or clinic. That means you can’t get the drugs at a pharmacy like other prescriptions, even though most of the process of a medication abortion happens outside of immediate medical supervision. After a provider dispenses pills to a patient, the patient can either take the mifepristone with a doctor or at home, self-administers the second set of pills 24 to 48 hours later, and passes the pregnancy on their own.

Research has shown that the extra step of getting the pills in person is medically unnecessary, and that medication abortion is just as safe and effective without it.

In other words, the primary effect of the FDA’s restrictions on the pills, abortion rights advocates argue, has been to make it harder to access abortion.

“This is a method patients are becoming more comfortable with,” Elizabeth Nash, the senior states issues manager at Guttmacher Institute, told VICE in September. “If the FDA lifted the restrictions on mifepristone, then it would be much more accessible. That would be a game changer for many patients.”

Instead, many patients find themselves facing familiar barriers—such as cost, distance to the nearest clinic, and mandatory waiting periods—to a form of abortion they expect would be much easier to access. These obstacles have made some people turn to the internet, where several websites sell abortion pills and send them by mail in defiance of the FDA’s policies.

While ordering abortion pills online can help patients get around the clinic problem, the FDA’s restrictions still loom over the process. Aid Access is the most reputable online abortion pill service, as the cheapest—it’s also the only one that includes physician oversight. But in order to sidestep the FDA regulations on abortion drugs, it ships the medication from overseas, increasing wait times for the pills. In some cases, packages of pills have gotten stuck in U.S. Customs for weeks, putting patients at risk of missing the 10 to 13-week window they have to take the medication.

As Robin Marty, the author of Handbook for a Post-Roe America, pointed out, complications resulting from giving yourself an abortion with pills are rare: The only complication most people face with Aid Access is the wait times imposed by U.S. government regulations.

No matter what happens at the Supreme Court in the next few months, advocates say it’s time to look beyond Roe. People are already beginning to imagine bold possibilities: In January, Abigail Burman, a third-year University of California, Berkeley, law student, told VICE about her proposal for creating pro-choice sanctuary cities, which involves local governments shielding their residents from state or federal laws criminalizing abortion and self-managed abortion. (Yes, giving yourself an abortion is explicitly criminalized is illegal five states.)

Cities can take a step in this direction no matter what the nine justices on the court decide, she said.

“The movement has really gotten boxed into a corner of having to focus on the Constitution as the only way to protect access to choice,” Burman said. “But now’s the time to think, ‘What do we want abortion access to look like in the U.S.?’ instead of ‘What can we manage to scrape out of what’s left of Roe?’”

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