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The anti-abortion movement is likely to continue to deploy another longstanding tactic: deceiving people. Already, one in 10 Google searches for abortion services in states likely to ban directs users to crisis pregnancy centers — groups that often imply that they provide abortions when their mission is actually to block people from getting abortions. Expect anti-abortion activists to set up websites pretending to sell abortion pills or even selling fake abortion pills. As is often the case at crisis pregnancy centers, the hope would be that the person will time out of the recommended 10-week window for having an abortion with medication. More broadly, logging onto these sites may alert anti-abortion activists to people seeking abortions who then can be threatened with criminal prosecution if they follow through with the abortion, whether the state officially permits that or not.
In a post-Roe environment, how can these pitfalls be avoided? To combat a general lack of awareness, politicians, health care providers, advocacy organizations and average citizens need to spread awareness about medication abortion, reliable places to find it and who can help if complications arise. Free-speech guarantees should protect the provision of accurate information about medication abortion, even if abortion services are prohibited in a particular state. To increase the availability of pills, legislators in abortion-supportive states could pass legislation that would protect providers prescribing across state lines who are practicing providers within the scope of their medical licenses. States like New York and Connecticut recently enacted laws that seek to protect who treat patients who travel to their states. States might think further about how to reduce the risks of mailing pills across state lines. However, cross-border abortion provision will never be risk-free in a coun try with patchwork legality and without federal policy on the matter.
To combat policing and other restrictions of those seeking medical abortions, Xavier Becerra, the head of the Department of Health and Human Services, should enforce HIPAA to protect abortion seekers’ private health information. Except in defined circumstances, under HIPAA a health care provider may not disclose protected health information to state authorities. The department should warn health care workers that it is illegal for them to report patients they suspect of having had abortions unless compelled by a subpoena, warrant or similar legal document, and it could develop new protections that apply to patients accused of abortion-related crimes.
Beyond government regulation, criminal defense attorneys around the country need to prepare themselves for an onslaught of cases concerning abortion law and pills. There are already nonprofit lawyers working in this space, but if abortion is a crime in about half the country, criminal defense lawyers will need to respond to a new set of charges against providers, patients and, potentially, those who assist them. Similarly, prosecutors could follow the lead of Attorney General Rob Bonta of California, who has urged his colleagues across the nation not to prosecute people for pregnancy outcomes.
Finally, search and social media companies can play a role in countering abortion pill misinformation. These companies created policies that have tried to de-emphasize, remove or add disclaimers to Covid-19 misinformation. Given the immense complexity of the post-Roe legal and abortion access landscape, companies could enact similar policies governing abortion misinformation and websites that aim to deceive and entrap pregnant people. They could also reconsider how they track and store people’s location data, which could be used to enforce abortion penalties. State and federal regulators can play a role too, as those whose mission it is to combat false consumer information could target pill disinformation campaigns.
Medication abortion is not a magic solution to the likely end of Roe, but its increasing availability can blunt some of the fallout if regulation returns to the states. Because the reality is that abortion pills will be available to people in the United States — no matter what the Supreme Court does and regardless of whether states give permission.
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