A few days ago I showed you this chart:
This points to one of the most interesting ways of fighting the Supreme Court's abortion decision.
Abortion pills are approved by the FDA—a federal agency—and are nearly as safe as aspirin. A lot of experts think that it's impossible for a state to ban the use of a medication approved by a federal agency, and that would mean abortion pills are legal everywhere, regardless of a state's abortion laws.
But suppose that's not true. Or suppose the Supreme Court just arbitrarily rules that state law takes precedence. It's still the case that abortion pills are legal in lots of states, and there's nothing the Supreme Court can do about that.
So someone in California sets up a website that delivers abortion pills to anyone who wants them. That's legal in California, and there's no practical way of banning websites on a state-by-state basis. Someone presses a button, buys the pills, and they're delivered by the postal service. That's also a federal agency, and no state can intercept the mail and legally surveil it. Then you take the pills, and the next day you're no longer pregnant.
If everything is encrypted and the California folks don't keep records, it's hard to know what anyone could do about this in practice even if it were technically illegal.
Now, this isn't a panacea. Abortion pills are very, very safe, but occasionally they have side effects serious enough to demand a trip to the ER. That opens up the possibility of authorities figuring out what you did and prosecuting you.
More to the point, abortion pills don't work on all pregnancies. They're good only for the first 11 weeks. They don't work on ectopic pregnancies. And they're not recommended under certain circumstances.¹ All told, abortion pills are probably effective for about 90% of abortions.
So they aren't a perfect solution. But they sure make things a lot better, and they'd especially make things better if their cost were paid by some friendly billionaire. Another thing in their favor is that Republicans are scared stiff of even trying to prosecute women who get abortions. Doctors, sure, but not their patients. That's wildly unpopular and Republicans have always sworn they wouldn't do it.
¹According to WebMD, abortion pills are not safe for anyone who:
- Is too far into their pregnancy
- Has a pregnancy outside of their womb (also called an ectopic pregnancy)
- Has a blood clot disorder or serious anemia
- Has adrenal failure
- Is taking steroid medications long-term
- Takes any meds that could affect the drugs needed to end the pregnancy
- Has an IUD (intrauterine device) — a doctor would need to remove this first
- Is allergic to abortive medications
- Can’t get to an emergency room if needed
- Can’t see the doctor for a follow-up appointment
There are reports of states trying to make that illegal.
What if one state finds that someone in another state is sending abortion pills to their people? They could still issue an arrest warrant, and those people will have to fight extradition. Then what happens--they take a flight that has a layover in an anti-abortion state--oops, they go to jail. What if there are bounties?
If Texas discovers that someone in California has committed an act that would be illegal under Texas law, but it NOT illegal in California, does Texas have legal authority to arrest that Californian? I doubt it, but IANAL.
They can certainly arrest the woman that takes the pill or even for just receiving it in the mail and several states have already banned mail delivery of abortion pills. Let's face it, it has never about the fetus being a human, it has always been about punishing women for having sex for pleasure.
" Let's face it, it has never about the fetus being a human, it has always been about punishing women for having sex for pleasure."
Perhaps
But I believe it's about Reagan's "welfare queens" quip which implied that women, especially minority women were having kids to increase the government dole they were living off of. Since he made that comment MOST Americans believe that the VAST majority of people collecting food stamps, medicaid, etc were young and minorities, when in fact statistics show that the collectors of these benefits are white, and older. They then trot out the tired argument that people who use food stamps are buying lobsters etc which in todays world with scanners and UPC and QR codes on most foods makes it almost impossible to do.
But we, as a nation sensationalize scoundrels to buttress our own arguments.........so if it fits. let's make all black women out to be free loaders and welfare queens because that's what we want to believe.
Lets make all Mexicans out to be illegals because thats what we want to believe
We also believe that good guys with guns stop bad guys with guns, the wall will STOP illegal immigration, and that by removing all protections against conception that somehow this will instill a higher level of morality in our children that our Churches and parents failed to instill in them.
And MY generation, the boomers, are the worst for this.
Situation would be the same as someone in a state that legalizes marijuana mailing marijuana to someone in a state that bans it.
Definitely a crime age can be prosecuted by the receiving state.
Enforcing extradition might be hard.
But what is going to happen when the state creates a tort that people can sue under (ie the father of her dies not agree to the abortion) ave someone gets a judgement against the company and its principals? Will national financial institutions defy state court orders to seize assets? Even if all bank accounts are in safe states how do payments flow and can inbound or outbound bank transfers be seized en route?
It's not the same for a very simple reason. Marijuana remains illegal at the federal level, and thus using the USPS to transport it is illegal.
Abortion pills are legal at the federal level, and using the USPS to transport them is legal also.
States cannot override this.
That would be a federal prosecution. Irrelevant to the question of liability under state law.
I am referring to state prosecutions for delivery of marijuana to people in the state.
It's the act of trying to make it illegal to obtain such medicine and then trying to enforce such illegality that will not only be a turn-off for most voters but be ridiculous and lacking in all common sense at the same time.
Ready to get your mail inspected to see if you have any (gasp) pills? Yeah, I didn't think so either.
I would think the bounty system Texas set up last year would be able to target pill distribution. Like the postal carrier who is delivering all these packages from the same California address. He’s eligible to file a $10K abortion bounty lawsuit in Texas, as he’s not a state employee, if he figures out that all packages from that address contain abortion pills. And from what I understand, the onus is on the person being sued to prove they didn’t facilitate an abortion, not on the person filing the suit. So if he files hundreds of suits, even if 99% fail, he only needs one to win to get $10K.
Good luck hiring a lawyer for less than $10,000.
lots of people receive medications through the mail. assuming the packaging gives away that the contents are pills of some sort, how does said mail carrier know the specific contents without committing a crime? i doubt even texas courts would have much patience with someone filing what amounts to a bunch of frivolous lawsuits. and what bobber said.
Placing "from" addresses on packages is not required, merely recommended.
You write this as if pro-choice activists would be this stupid. Maybe read this fine article on one pre-Roe group:
https://www.washingtonpost.com/outlook/2022/06/25/lessons-an-underground-womens-abortion-service-1970s/
I don't think that the naive linkage you're suggesting a mail delivery person will be possible.
And how would he know without tampering with US mail which is a felony?
If you conspire in CA to kill someone and/or actively provide the means knowing their intended use in Tennessee you certainly can be extradited and tried in Tennessee under a number of different statutes and theories.
What I kind of like, and I honestly don't know the answer yet...but...set up abortion clinics on Indian Tribal Lands, which truly are everywhere in larger or smaller measure, in the same sense that gambling laws are avoided.
(but contra, could you set up heroin farms or suicide booth just across state lines in Indian lands...I suspect not, but the clinic idea for health care still intrigues me).
Best Wishes, Traveller
Although 28 states provide some protection for the religious use of peyote by Native Americans, in 1990 the Supreme Court ruled that it is constitutionally permissible for states to prohibit such use.
If this court wants to criminalize abortion, they will find a rationale to justify it.
A number of the tribes also don't like abortion. Others are pretty fucking pissed that white folks are now begging them for help in a way that will surely cause redstates to more directly attack them.
If you conspire in CA to kill someone and/or actively provide the means knowing their intended use in Tennessee you certainly can be extradited and tried in Tennessee under a number of different statutes and theories.
How many cops is the state of Tennessee going to hire to try an extradite all the people from California sending medicine through the mail? Hmmm?
I don't necessarily disagree, but just a few thoughts:
1) The abortion pill does have pretty serious side effects. There's incredible bleeding. In a perfect world, a woman would be in close contact with their doctor after the pill. It's not like Plan B, where there isn't a good case to not let it be sold over the counter.
2) The worst Republicans will still make life hell for women who go the pill route. Miscarriages will be investigated. Rogue sheriffs will start arresting people. It's going to be awful.
3) The people who run the Blue state pill distributors might want to avoid traveling to Red states, which is an insane thought to have.
Depends on the person. It CAN have serious side effects but definitely not everyone.
Unfortunately, the woman won't know until (if) she tries it. Not exactly a confidence inducing scenario.
2) The worst Republicans will still make life hell for women who go the pill route. Miscarriages will be investigated. Rogue sheriffs will start arresting people. It's going to be awful.
That's the idea.
I’ve seen even Plan B have fairly strong side effects. I know, it’s just like a 10x dose of regular birth control, but, idk, hormones.
Just an observation.
These pills go a long way to negating the impact of ruling. There are many more in place as well…Underground Railroad thinking is important. Keeping everything on the DL is also important. Marching around with clever signs and shooting off your mouth ( I’m talking to you AOC)…is useless and probably damaging
And when Republicans retake the White House and control the FDA?
Rights need to be rights for a reason.
The president appoints the head of the FDA, but I don't think that individual can unilaterally alter the approval process, or overturn previous approvals.
“Can’t see the doctor for a follow-up appointment”
This appears to be the problem here doesn’t it?
Women on Waves is an international nonprofit that will mail abortion pills to anywhere in the US. Pretty much risk free.
From a potential criminal / civil liability prospective, such operations would be safer in Canada or Mexico, out of the reach of the US legal system and the SCOTUS Theocrats. The drug cartels will likely have a new thriving business opportunity. If a state wants to ban a supportive website, they should consider internet blocking software for all their residents. I am sure that China has some effective algorithms they could sell to Texas and all the other forced birther states.
Netherlands is the main one iirc
Isn't the Supreme Court working on de-legitimizing all federal regulatory agencies, like the FDA? By the rationale that "only Congress has the power to make regulations"? Just sayin' ...
The successful increase in use of medication for abortion needs to be packaged in a way similar to Covid "test and treat." Around 80% of abortions occur in the first 11 weeks of the pregnancy (per recent NYT article). A few happen much later when serious complications for the mother (or significant fetal abnormalities) are diagnosed. But there are still a significant number after 11 weeks that are the result of delayed recognition of pregnancy on the part of the woman or perhaps ambivalence or changing circumstances as time elapses. Trying to reach some of those undesired pregnancies earlier in their course would increase the proportion able to be done earlier, and would also enhance safety to the woman. Barriers need to be addressed so that home testing can be done frequently and inexpensively (and much cheaper than Covid!). Testing can be coupled (if desired) with referral for the woman's choice of proceeding. There is also a need for educational outreach - many women probably do not understand the limitations of abortion pills and the advantages of early intervention.
Pregnancy tests aren't that expensive. You can get them at most dollar stores for $1. Or you can get the plain test strips for less than that in bulk on Amazon. You just don't get the fancy test housing that lets you pee directly on the stick (so you have to use a Dixie cup or something similar and dip the strip in). The strips themselves are exactly the same and just as sensitive as the ones in the pricey drug store versions.
Kevin, these are prescription drugs. You can't just order unlimited quantities and distribute them to anyone who wants them. You'd run afoul of all kinds of state and federal laws regulating controlled substances and the practice of medicine.
Just shipping abortion pills to women in red states will become a tricky prospect, I predict. Just as you can't legally consume pot products that you may have legally purchased in one state in a state that still prohibits them, it seems logical that individual states can prohibit the distribution of illegal abortifacents (aside from the fact that it's still technically illegal to send them via US mail). I'm sure the next Republican administration will do their damndest to get the US Mail service, or other shipping companies, to put the kaibosh on distributing abortion pills and of course if there's a lawsuit, the current SCOTUS will rule that that's completely within the government's power.
"Just as you can't legally consume pot products that you may have legally purchased in one state in a state that still prohibits them,"
That's substantively because pot is illegal at the federal level too. Not the case for the drugs under discussion.
Seems like the obvious thing you're failing to mention here is the immense risk every woman in a state that has criminalized abortion would be taking. In esoteric legal and political discussion this sounds great. When you're a low income woman in Louisiana or Kentucky risking a 10 year prison sentence and 100k dollar fine or whatever, this sounds like a game of russian roulette.
But they'd never jail the woman...honest!
/s
yeah, i have full confidence that kevin has all good intentions with this post, and it's not even a bad idea. but as a old, well off, educated, white man he seems to have lost an understanding the realities facing less fortunate folks dealing with the real world horrors of republican policies and politics.
https://www.washingtonpost.com/outlook/2022/06/25/lessons-an-underground-womens-abortion-service-1970s/
This gives me a very different sense of direction than you're describing.
I'm not sure what you mean. As I said, I don't think an "underground" network to support abortion access is a bad idea, or an ineffective one. I just think Kevin's failure to talk about the risk it poses to the women involved reflects a disconnection from the real world. The rabid, misogynistic, religious fascists running the states that ban abortion will pursue criminal charges and severe punishment gleefully and I imagine successfully.
What I mean is that we had "underground" abortion services pre-Roe (when abortion was illegal also). The nature of those services was sufficiently well organized that I think the risk (notably for the less affluent, less powerful demographics) is less than you're makijng it out to be. I'm certainly not arguing that it is good that we're going to be forced back to such arrangements, just that I sense/hope/believe that an underground service will emerge that diminishes both the actual and perceived risk (just as the Jane Collective did in Chicago in the 60s and 70s).
But wingnuts in Texas will just order the pills and upon receiving them indict the company that sent them.
You really think we don't know how to set up anonymous drug delivery systems in 2022?
you don't think such anonymous systems, when scaled to the volume needed for this problem, will fail in the face of a concerted effort by right wing state governments and citizens, leaving thousands of women in severe legal jeopardy?
How would that work, like Pirate Bay or Silk Road?
They're in jail.
Pirate Bay folks spent months in jail, and were all out by 2015.
Silk Rd. guy was sloppy and believed in himself too much. Several critical errors on his part, none of which were necessary.
At least until such time as federal agencies would be willing to aid states (thus bringing the computational power of the NSA to bear), onion routing, lack of ego and a few other measures could build a more or less impenetrable system.
Once/If the NSA gets involved, could be game over. It might or might not happen, depending on presidential election outcomes. There are no state agencies equipped to break an onion routing based system that is run by people who know what they are doing.
And that's where Peter Thiel comes in.
You have to win a court case, and I don't foresee a world where the NSA is providing evidence in abortion pill delivery cases. The NSA is very reluctant to reveal any of its methods or tools in court, and certainly isn't going to do it to win a single abortion delivery case.
And these forwarding sites are trivial to set up. You collect the orders from a web page hosted in Europe, and forward them over a secure connection to one of a few dozen pill mailers in the US.
And some random red state prosecutor trying to track down the details from a site hosted by Google or Microsoft in Europe? That prosecutor will be in court until the turn of the century.
Sure, but an enterprise that takes orders for abortion pills in Europe and just forwards the requests to someone in the US over an SSL connection may well not get in any trouble in Europe. These folks aren't breaking any EU / UK laws.
This isn't the Pirate Bay.
Shipping pills is treating a symptom. To get to root cause requires “bluing” red/purple states. And that requires “liberals” being willing to remain in or move to “red/purple” states.
I already did my part - my family moved from New Jersey to Massachusetts then to Virginia back in the late 1960s. We all vote 100 percent true Blue. Migration is what flipped Virginia from the Old Confederacy, it's also what flipped Maryland too.
But that's not enough we also need to keep fighting off attempts at voter suppression.
It seems to me that the same reason I can't order cigarettes from NC and have them delivered in MA by the mail should apply.
I tried buying a multifunction showerhead on Amazon last week, but California prohibits showerheads rated at more than 1.8 gallons per minute, so Amazon won't deliver one to an address in California.
States outlawing abortion pills will go after companies shipping them. Kevin's not right about this: "there's no practical way of banning websites on a state-by-state basis. Someone presses a button, buys the pills, and they're delivered by the postal service." It is quite feasible for states to ban delivery through the mail. And it can't be just anybody shipping pills. The pills are FDA-approved for prescription use.
The best chance to keep open access for abortion pills is via the DOJ. Then it'll be up to the courts.
The pills aren't going to be shipped by amzn or by the companies that manufacture them.
States cannot ban delivery through the mail. CA's water sense law doesn't prevent the USPS from delivering those shower heads. It holds the company that ships it responsible (also, I think the homeowner, though who is going to know).
This article gives a vivid picture of what an actual underground abortion rights group looks like and how they worked in the pre-Roe world:
https://www.washingtonpost.com/outlook/2022/06/25/lessons-an-underground-womens-abortion-service-1970s/
This is what we're going to see returning (I hope, in that negative twisted sense)
The vivid picture the article paints is a desperate measure for desperate times. For many women, this will not be a viable solution for a post=Roe country.
The easy-peasy abortion-pill-by-mail alternative that Kevin writes about is not a real possibility.
Women opens tor browser, visits https://abortionmedication.co.uk, hosted outside the USA.
7 days later, an unmarked brown envelope arrives in her mail, containing medication. Based on postal stamps, packages seem to originate from several hundred zip codes in blue states across the USA.
This doesn't address any of the medical issues with abortion pills, but the supply side is totally doable.
A medication abortion is medically identical to a spontaneous abortion (miscarriage). I don’t think the meds stay in the system very long either, and at least one is commonly used for other purposes.
If I was really worried about being investigated, I’d probably leave a deliberate healthcare trail, like booking the intake appointment, maybe calling about some spotting a week before taking the pills, that sort of thing. Make it really look like a miscarriage, IOW.
A national policy predicated on mass lying, subterfuge and deceit involving shipping medications willy nilly which carry an up to 10% lack of success rate seems to me like folly. I know that there are going to be a lot of desperate people out there, and we need to do whatever we can to help them, as well as change the situation we’re in. But the idea that we can technology our way out of it, while putting real health consequences on the back of the unfortunate women who will bear the burdens of the failures, doesn’t seem logical.
Not to mention, the other side isn’t going to unilaterally disarm the tech. They will be getting warrants for phones and computers, which will have a trail of the purchase. Perhaps they only get involved 5% of medication abortions where the pills were mailed. But those 5% are going to have complications that bring legitimate liability to the provider that the victim will want to hold accountable, and they’ll be going to the police for help. The police will do cyber investigations, which will show California individuals and companies have negligently provided potentially dangerous medication under false pretenses, that can’t work out well.
And then when there’s a suspicion that a woman has had an abortion (ie - goes to the hospital for care when suffering bleeding, for instance), the police could easily seize their phone and get all information about the items they received.
So, sadly, I don’t see this as something we can blithely wish away with mail, pills and technology. On the other hand, I have a far darker image of what can happen - I see a future similar to the time during the Fugitive Slave Act ending in Dred Scott. Telehealth is criminalized in one state and doctors won’t be extradited. The Supreme Court intervenes and orders blue states to cooperate with red state prosecutions. If a California governor and AG refuse to go along, does the Federal Govt send troops in to enforce that? Does California fight back? What if it’s mass rebellion by NY, CA, IL, OR and WA where they all refuse? Do the Feds then decertify those state governments? We go down a bad rabbit hole pretty quickly
Yes, I've been thinking about Dred Scott in conjunction with Dobbs as well. There are parallels. They both concern the rights of people who were not considered (as people at least) in the original Constitution; in any case people who were and have been marginalized and repressed in our history. Dobbs .. Like Dred Scott is an attempt to hang on to reactionary ideas in an era where those ideas are getting shoved aside by the modern world and as such may be more a last gasp of a dying worldview than a true change in direction. At least, I hope so.. How many people under 40 are opposed to abortion ? Of course I hope we don't need to endure another civil war to move on.
Although, to be clear, the 14th Amendment appears to specifically EXCLUDE fetuses as receiving protection. It states quite explicitly that it refers to “All persons BORN or naturalized,” not conceived or naturalized....
The Supreme Court perhaps can order CT, for example, to go against its own laws and provide information to a red state about an action that's not a crime in CT. But CT won't. And then what's the Court going to do? You'd have to have a situation where the Feds would federalize the National Guard in CT, and even then, what? The NG isn't going to perform a criminal investigation.
And unlike the people receiving the drugs, the people running the operation, assuming they can even be found, will certainly know how to destroy digital evidence well before the Guard can seize their phones.
Ha! A use for bitcoin!
There should be a web site where you can purchase the pills (using Bitcoin, of course) and have them sent to the red-state elected official of your choice.
Make them order their own pills when they or their female relatives get pregnant.
If you want to send something to a red state official, send a wire coat hanger.
The point of sending them the pills is so that they will be in possession of said pills at a time that it is illegal to possess them.
Lacking a strong(er) EU-style GDPR, people in America accessing the internet for the purpose of obtaining medication for a self-administered abortion are not protected. Lacking a targeted legal shield for an abortion pill provider in CA (or any state where abortion is legal), your proposal is untenable.
When you type in "webmed.com", your ISP is able to see that, and so too is the DNS where that address is resolved to an IP. Most people do not know how to point to a secure DNS like Cloudflare's or to use a VPN.
Whether you search for "abortion pill" or visit a site you think is safe, all of that is trackable by first and third party cookies, pixel trackers, and many apps installed either on your phone or your computer. Many messaging apps are not secure, either. Specifically, your texts are not encrypted and your texts are saved in the cloud.
The risk of anyone who participates in the endeavor you believe is safe, is high. Any one instance has a low risk level, but multiply that by1000 or 10,000 and your risk is greatly amplified as a medical provider.
yup. kevin is detached from reality on the extreme risk this poses. and if he or anyone believe GOP state officials won't pursue these cases aggressively and highly punitively, they're nuts.
This is why you use a tor browser, conveniently based on technology developed by the US military/diplomatic core. Your ISP knows nothing about the target of your visit.
It's not as if activists around the world haven't faced these same issues for at least a decade; the solutions are not 100% watertight, but without the computational power of the NSA or similar, they are pretty close to it.
Not only that, it's amazing when one thinks of all the illegal drugs in circulation around the country, not to mention all the other contraband material smuggled everywhere in the U.S and around the world and the fact that historically, such prohibitions wind up like Prohibition did in 1933, that we even think poor states like Arkansas or Mississippi are going to have the resources and or the means to figure things out and really clamp down on abortion pills? Are ya'll nuts?
I'd be surprised if you couldn't run a web site out of Europe that takes orders for the pills and forwards them over a secret and secure channel to the people mailing the pills in the US.
Visiting the site isn't a crime, of course, and at present, few or none of the anti-choice laws target the woman, just the providers.
Also, see Plan C and the like -- people outside the US who will send you abortion pills via the mail.
I think the more viable option is one is to make (multiple-use) abortion drugs available legally OTC. The DoJ has already signaled it will defend access to abortion pills. If these (multiple-use) drugs were OTC, the DoJ would have a stronger hand.
You know, as a final but real thought....only elections will help...the apathy of undeserved women somehow has to be overcome and they need to be energized...not just Federal and State elections, but School Boards, Mayors, Library committees...all of them.
If the poor and unwashed will not step up...there is little I can do.
Traveller
From KDs post
"Has an IUD (intrauterine device) — a doctor would need to remove this first"
So failed contraceptive would have to be REMOVED?
Forcing a medical procedure on a woman?
Only to NOT (possibly) be able to get that IUD put back in?
Overturning Roe is really going to tie the courts up in knots over the ramifications.
According to PP, the abortion pill is essentially effective 94-98% of the time.
https://www.plannedparenthood.org/learn/abortion/the-abortion-pill
Clearly you'd have to run a service like this with a high degree of anonymity, since red states may try to prosecute the people running them. But there are blue states that are refusing to provide any information to prosecutors that request information about "crimes" committed for abortion related acts that are legal in that state (CT comes to mind, but others are following their lead).
Women would have to make a decision about whether or not to keep a pregnancy earlier than today, but most elective abortions are early abortions.
With respect to genetic testing, unfortunately, CVS testing can't occur until week 10 at the earliest, so a bad result from that test be right at the point where the abortion pill can no longer be used, and the woman would have to travel to a safe state.
Re-Pube Gov`s HATE women .