Texas already has the most restrictive abortion laws in the U.S. — and they got tougher on Dec. 1. That's when a new law went into effect that adds penalties of jail time and a fine up to $10,000 for anyone who prescribes pills for medication abortions via telehealth and the mail.
Texas bans all abortions after cardiac activity can be detected in the embryo, which is usually about six weeks into a pregnancy and is often before a woman knows she is pregnant. Medication abortions via telehealth or mail were already illegal in Texas, and the new criminal penalties went into effect on the same day that the Supreme Court heard arguments in a Mississippi case that ultimately could overturn Roe v. Wade, the landmark 1973 ruling that established a constitutional right to abortion.
In contrast to a surgical abortion, which takes place in a clinic, a medication abortion involves two pills, taken 48 hours apart, to end a pregnancy. Many people prefer this process early in a pregnancy, since the pills can be taken at home. The FDA approved the drugs in 2000, and the procedure is effective up to 10 weeks into a pregnancy.
Texas is not the only state restricting medication abortion and telehealth. In 2021 alone, five other states passed laws against sending abortion pills through the mail, says Elizabeth Nash – a state policy analyst with the Guttmacher Institute.
"These additional barriers simply make it harder to access care," she says. "It's a squeeze play on abortion."
Nash says this crackdown is partially a response to the pandemic when more women started seeking medication abortions.
"We saw the increase and really sort of the coming out of telehealth as part of medical practice," she says.
Texas's new law, Senate Bill 4, also narrows the legal window for medication abortion to the first 7 weeks of pregnancy.
State legislators passed this new law on Sept. 17 during a special session — more than two weeks after another abortion law, often called the "six-week ban" — went into effect on Sept. 1. Attempts to halt that law as groups challenge it in court have failed; it is in effect for Texas women now.
"We already have the most extreme abortion ban in the U.S. and yet our legislature made it a priority to add this additional abortion restriction," says Sarah Wheat, the chief external affairs officer with Planned Parenthood of Greater Texas.
Because of the "six-week ban," the new limits on medication abortions won't have an immediate impact.
"Most people at this stage of a pregnancy are already banned from accessing abortion in Texas," Wheat says.
But the new law could significantly affect access to abortion in the future.
By criminalizing the use of telehealth and mail-order prescriptions for the abortion pills, the state seeks to forestall a possible workaround to the shrinking number of reproductive health clinics in Texas.
Already, many Texans live hundreds of miles from the nearest clinic offering abortion services. Advocates have been promoting the use of telehealth for medication abortions in places where clinics are few or far between, and some states experimented with greater telehealth flexibility —- including for abortion pills — during the pandemic shutdowns.
Even now, Wheat says, the new law "is creating additional fear and additional stigma for people who may be seeking access to medication abortion."
For their part, anti-abortion groups in Texas view SB 4 as a victory — an important second step, after the six-week ban, in their efforts to curtail all access to the procedure.
John Seago, the legislative director for Texas Right to Life, says his group wanted to make sure law enforcement officials in the state have the ability to prosecute people who administer medication abortions outside of the state's strict limits.
"This piece is really important for this period but also moving into the future when we see even after [Roe v. Wade] we have organizations and individuals advertising that they will mail abortion inducing drugs," he says.
Nash of the Guttmacher Institute says in some states it became easier for people to get access to medication abortions through some of these telehealth services.
Seago says he wants to make sure that doesn't happen in Texas.
"This is going to be a future public policy issue around abortion, no matter what happens to Roe v. Wade," he says.
So far there hasn't been any lawsuit challenging Texas new law restricting access to abortion pills. Mounting a legal challenge to halt the law is complicated because Texans are already prohibited from all abortions after six weeks, so it may be difficult to find a Texas plaintiff with standing to sue.
Ultimately, Wheat says, Texas' latest law is a sign of what could come to be. She says it shows there is no end to efforts aimed at making abortion harder to access.
"Take note of Texas, because what you see is that our politicians, they do not quit and they can find endless ways to add fear, intimidation and restrictions," Wheat says.
Copyright 2021 KUT 90.5
