Over at Vox, Rachel Cohen asks:
Should you keep abortion pills at home, just in case?
With Roe on the brink, more experts are talking about advance provision of mifepristone and misoprostol.
Medication abortion, or taking a combination of the drugs mifepristone and misoprostol, is an increasingly common method for ending pregnancies in the United States....With more in-person clinics shuttering and a Supreme Court that’s threatening to overturn Roe v. Wade, a small but growing number of reproductive experts have been encouraging discussion of an idea called “advance provision” — or, more colloquially, stocking up on abortion pills in case one needs them later.
Cohen spends 1,500 words to fully answer the question in her headline, but I'll use just one: Yes. They're safe, they have a long shelf life, we have years of experience with them, and bad side effects are minimal. And the cost is low: $30-60 or so depending on where you buy them and what your insurance pays for.
As with any drug, there are precautions. WebMD has a good writeup here. Or talk to your doctor.
Generally speaking, though, I can't see any reason not to have abortion pills handy if you have any risk of having an unwanted pregnancy. If you live in California and there's a good clinic around when it happens, fine. You wasted a few bucks on some pills. If you live in Texas, it might be your only choice. So just do it. What's the argument against it?
The only concern that I would have, if I were a woman, is the risk (which I think is significant) that a future Republican legislature in a red state will criminalize the acquisition or possession of such medications. In which case, you’d be leaving a paper trail that would expose you to being arrested and prosecuted in a red state. Unless there's a way for women to obtain these medicines anonymously it's a gamble either way.
And, to be clear, based on the current proposals from various conservatives, living in a blue states probably won’t prevent you from being prosecuted or sued in a red state which has decided that it’s legal prohibitions against abortion should extend universally. This is an important new legal development but it needs to be taken very seriously. I believe it is highly likely that such laws will be passed in the future, enforced by a Republican prosecutor, and upheld by the Republicans on the Supreme Court.
And, to be even more clear, there's no reason why such universal criminal laws would be limited to abortion. In theory, there's no reason why any red state probation on specific conduct wouldn't be universally enforceable. Anything from contributing to a Democrat, to same sex activity (including marriage),to possession of birth control pills, to speech in opposition to the Republican Party can be criminalized in a red state but enforced in a blue state. In that context, it's worth mentioning that the currently circulating conservative model post-Roe anti-abortion law criminalizes advocacy of abortion or discussions about the technical or medical aspects of birth control—Kevin's post could easily seem him prosecuted in Texas or Florida once Roe is overturned and the model code is adopted in those states.
I was wondering about this. Aren't medications in the US the purview of the national government (FDA)? Can a state render illegal medications that are approved for national use?
There's a two part answer:
First, the federal government still has some regulatory authority over food and drugs but that's mainly exercised in a negative sense: banning unwholesome foods or unsafe drugs from moving in interstate commerce. But the fact that food or drugs are considered "safe or effective" by the federal government doesn't license possession by individuals or safeguard that possession against state action.
There's nothing preventing states from regulating or even prohibiting people from possession things that the federal government has deemed safe. States could criminalize the possession of bacon, if they so chose. And, even today, a number of states all counties to be "dry" or to strictly regulate the sale of booze. States can unquestionably make the possession of abortion drugs illegal once Roe is formally overturned.
Second, the more interesting question (and one which is being enthusiastically promoted in conservative legal circles) is whether red states can criminalize behaviors not just within their own boundaries but have those legal prohibitions extend to states and foreign countries in which those behaviors are legal. If it can either create a crime or a civil action which is not limited in terms of territorial ways (i.e., takes place within a states) then it would indeed be possible to criminalize possession of such drugs or performance of certain medical procedures or even giving advice to women about birth control that takes place in another state. I think that and birth control generally will be the next battleground .
Thanks.
Well, if something is legal at the time you do it, the constitution specifically prevents people from passing laws that make you criminally liable for it. This is an "ex post facto" law. It's not allowed.
Possession is a different thing. You could be subject to search based on purchase records. The thing is, though, that drug purchase records are protected by HIPAA (https://www.cdc.gov/phlp/publications/topic/hipaa.html#:~:text=The%20Health%20Insurance%20Portability%20and,the%20patient's%20consent%20or%20knowledge.)
I would think.
Don't get me wrong, they would love to do this, and they will probably try.
& as we all know from the COVID vaccine abstention movement, the GQP totally understands & plays fair with HIPPO.
In the abstract, you’re right about the ex post facto clause but probably wrong as a practical matter. At this point, the constitution has been reduced to an empty vessel which is filled by Fox News and the extreme right. But, also, as you say, it would be possible to criminalize the possession of abortion drugs and draft the state law to create an irrebuttable presumption that past purchases are proof of current possession.
That’s not unthinkable once you’ve accepted a new theory of criminal laws which allows red states to criminalize behavior in other states or even in foreign countries. It would, for example, allow red states like Texas to extend the reach of their criminal laws universally in much the same way that the Red Scott case allowed the slaves states to essentially override the autonomy of free states and force them to effectively become participants in the slave system.
The blue and purple states would have essentially the same choices and difficulties as the free states had in responding to the Dred Scott decision. The power of the Supreme Court is structural. Such a decision would have great influence on the survival of the republic but also on the survival of the Democratic Party which could put a stop to the Republican justices shenanigans but which chooses not to do so——I think the pressure for a third party to supersede the Democrats would become immense, much as the Whigs inability to take a stand against slavery lead to it demise.
Interesting article:
https://www.brookings.edu/research/prospects-for-partisan-realignment-lessons-from-the-demise-of-the-whigs/
Read the article and it fails in a bunch of ways. The guy is a right of center guy so he has a huge blind spot about the modern GOP, he fails to see the transition of the GOP to a white ethno-nationlist party he hems and haws his way around the realignment of the parties based upon the LBJ's embrace of civil rights in the 1960s beginning the resorting, it was never about low taxes. It was about the government letting one be a bigot and misogynist.
I agree with you. I think you’re right and I don’t understand why others don’t see this.
But the main thing, which is why I cited the article, is that there’s very broad agreement across the political spectrum about why the Whigs crapped out, namely, timidity or temporizing about slavery which demoralized and alienated the base of the party.
I think there’s a broad historical analogy to the country post-Dred Scott and now. I think the key with Dred Scott was that it forced the free states to either be active supporters of slavery or begin to think about the unthinkable.
I'm wondering how exactly the red states propose to enforce anti-abortion laws in blue states, even if Republicans manage to pass a national law banning it. Same methods they used to enforce the Fugitive Slave Act? That didn't turn out very well.
Yes, it would be a rerun of Dred Scott. I think it not predictable how it would end up. The lines of division are no longer geographical but would represent blue or purple population centers against the white ethno-Christian Fox News viewing minorities. And the response would be simply one battle in what’s likely a coming period of political instability and low intensity conflict.
The most likely immediate consequence might be the collapse of the Democratic Party as the base becomes increasingly disillusioned and restive, leading to a possible quick collapse of the Democrats/Whigs and the rise of a new much more aggressive and vastly less accommodating center left party à la tge pre civil war Republicans.
Um, er, ah, it wasn't "Republican" who passed the fugitive slave law. At that time Democrats were the Party of the Slavers.
The Republican's ancestors did - for the umpteenth time, it's a bad faith argument to pin what the Democratic party of the 19th century did on the 21st century Democratic party.
+1 Klan meeting led by Robert Byrd
I don’t understand why the states would criminalize anything. Why not just go with the Texas vigilante approach? That way the law can be blatantly unconstitutional and the Supreme Court has already ruled it won’t challenge it.
One problem with the Texas civil law approach is that bringing a case is expensive and nobody's done it yet, not even against abortions being performed in Texas. And it's not clear how one would enforce such a judgment in another state, particularly a state like California with its strong anti-SLAPP laws. But the thing that explains why Texas or Louisiana will eventually criminalize conduct occurring outside of the state is that its the only realistic way to prevent the states anti-abortion laws from being circumvented. As we saw, abortions stopped in Texas but the women needing abortions simply went to Oklahoma.
These ideas about criminalizing out of state conduct in a post-Roe world have been floating around in conservative circles for decades. The problem for conservatives is that deciding what laws to pass after Roe is overturned is kind of like the recipe for tramp stew ("first, steal a chicken"). Now that it's clear Roe is doomed the same debate about preventing circumvention is back because if a woman can get an abortion in a different state without suffering a penalty, your red state's criminal law won't really be a meaningful deterrent (particularly if liberal groups raise money to permit women to travel for an abortion).
That's why there's so much discussion about criminalizing not just out of state action but also the talk is about dragging people who speak our against abortion laws or discuss medical procedures disfavored by conservatives or provide pill or money into the criminal courts of red states. Traditionally, of course, this would be a non-starter but there's never been a court like this Republican court and nobody really know what, if any limits, they are going to impose on their own (unlimited) powers.
Mitch, there's a provision in the Constitution banning "ex post facto" laws. So, while I wouldn't be AT ALL surprised to see Texas ban "purchase and possession" of the pills, they can't ban "former purchase". So if worse comes to worst, women can flush them Like in the good old days....
So far as the "suing across the state line" issue, as long as one does not travel to Texas (or whichever offending state) and don't own property or receive income from there, they can pound sand. You can't be arrested and rendered for a debt which is what these "sue the enabler" things are, not criminal actions which CAN lead to extradition.
Leaving aside the question of whether this court would write the Ex Post Facto clause out of existence to help suppress abortions, my guess is that the court would uphold a presumption that previous purchases could be used to establish current possession.
I agree that lawsuits across state lines would be problematic but, again, not impossible for this court which does not seem to accept conventional limitations on its power. The court could establish a new version of International Shoe that says something along the lines of everyone is an honorary Texan for purposes of personal jurisdiction. If there’s one thing this court is good at it’s starting with a result and creating a rationale to reach that result. Remember, they’re infallible because there’s no appeal to a higher court.
Collecting could be done via full faith and credit).
Criminal prosecution would be easier than civil suits since the principle of extraterritoriality(Fugitive Slave Acts and current anti terror laws). Much better and easier with federal enabling legislation and extradition gets defendants “returned” to the requesting jurisdiction.
These are the theories that Republicans are proposing. There are model state laws criminalizing leaving a state to obtain an abortion and laws reaching into other states criminalizing otherwise legal conduct in those states. We’re looking at political instability, increasing violence, and legal Calvinball in support of the Republican agenda.
" Anything from contributing to a Democrat, to same sex activity (including marriage),to possession of birth control pills, to speech in opposition to the Republican Party can be criminalized in a red state but enforced in a blue state."
I don't think is true now or will ever be true. Red states right now all open carry of weapons without a permit. These are not enforced in CA. Red states now limit abortion to before 6-15 weeks. These laws are not enforced in CA or many other states. CA now allows people buy pot for recreational purposes. This law has no power in other states.
Then we have ex post facto laws:
Ex post facto is most typically used to refer to a criminal statute that punishes actions retroactively, thereby criminalizing conduct that was legal when originally performed. Two clauses in the United States Constitution prohibit ex post facto laws: Art 1, § 9.
I don't see how a legal act now, such as buying abortion drugs, can be criminalized after the fact.
Using them could be though. Possession too.
Good point, I guess women in TX will have to make the decision to use and own abortion drugs, telling no one who might turn them in. That's too bad, but it will happen.
Yep, a few years ago at the CA/AZ border they were pulling over any CA car which looked like it might contain marijuana.
They are obviously going to criminalize possession. They are going to have a tougher time criminalizing action in another state though.
The idea is that a red state like Texas or Louisiana passes a very strict abortion law after Roe is overturned. But the law could be easily circumvented by women leaving the state and having their abortions performed in states or countries where it’s legal. According to traditional criminal law theory (which is focused upon territoriality) it would be impossible for the state to prevent women from traveling to places where abortion is legal or to punish them upon their return for having such abortions. Similarly, it would be impossible under the traditional thinking for the state of, for example Louisiana to punish a doctor for performing an abortion in a place where that is legal. What conservative legal thinkers have been arguing for since around the 1980s is the extension of their criminal laws initially to women who travel out of state and return but ultimately, of course, once you’ve established the principle that you can criminalize actions which take place out of your state, basically anything goes.
Essentially, the first step would be to prosecute women who left the state but returned. But once the principle is established a red state could drag anyone it wanted into its courts for either a civil lawsuit or a criminal prosecution.
We are in completely uncharted waters. There’s never been a political party like the Republican Party nor a Supreme Court like this Republican one. The constitution and criminal law theory are basically just norms and, as we have seen, those are not things which Republicans respect.
Couldn't a state like CA pass a law stating that it's against CA law for another state to attempt to criminalize the abortion any woman has in CA?
I just don't see how this Republican theory of having state laws that go beyond their borders working. At that point any state can pass any law they want and extend it to other states. It ends up in the Supreme Court and God knows what happens then.
I honestly don’t know. This is nearly unprecedented in the history of Western Civilization. With the exception of treason, there has always been a constant requirement that the actus reus (slightly oversimplified as the physical or action of doing the crime)needed to take place on the territory of the prosecuting sovereign. And, historically, principles of comity and sovereignty uniformly respected the independence of other sovereign for purposes of criminal law.
Consequently, if one smoked dope in Amsterdam (where it was legal), one couldn’t be prosecuted in Tulsa (where it’s illegal). Frequenting a prostitute in one of the Nevada counties where prostitution is legal, traditionally meant that neither the prostitute nor the client could be prosecuted criminally if either had the misfortune of being in Tulsa.
The Republican proposals are different but in ways that are unpredictable. At best, a California law purporting to “decriminalize” having an abortion in the state would only be effective as long as the prospective defendants are in the state. Even so, principles of comity between American states require that states honor extradition requests from other American states. Meaning that if the prospective defendants are in, say, Texas or Louisiana, the California laws wouldn’t save them and if they weren’t in California (and maybe even if they were), they could still be extradited to face prosecution in the requesting (red state) jurisdiction.
The closest analogy seems to be the Dred Scott case in which free states were forced to acknowledge the legitimacy of slavery and even participate in upholding the slave system. My assumption is that this court will uphold pretty much anything a red state does.
Which leaves us where? Either the Democrats act to protect people’s rights (expanding the court, restricting its jurisdiction, adding new states), or the Democratic Party gets replaced much in the same way and for much the same reasons as the Republicans superseded the Whigs, or something else. Your guess is as good as mine.
You're leaving out a different, and worryingly possible outcome: elections nullification and a descent into a defacto one party, authoritarian state.
If that happens it doesn't matter if disgruntled Democrats take a page out of the Whigs' 1850 playbook and start a new party (at least not until democratic norms are restored, which could be decades; it took Spain 40 years).
That’s a good point and, I believe the most likely outcome of the 2024 election. But the strategy for the party membership is the same regardless: vote Democratic to slowdown the Republican takeover but begin to organize a transition to a better, more effective party of the center left to replace the Democratic Party.
The logic is clear: the Democrats are incapable of being anything more than a speed bump but anything that slows down the descent into authoritarianism is welcome. If we can make the transition to a new party in time, that’s ideal.
But if we do find ourself in an authoritarian state, the Democratic Party is incapable of organizing and sustaining the necessary color revolution so the sooner after 2024 we have this replacement party the better.
It's not that much of a stretch. There was a case a while back in which, at the request of American authorities, a guy named Conrad Black was ordered by an Ontario (Canada) court not to remove certain documents from a building in Toronto, Ontario. He breached the order and was caught on video doing so; somehow this breach, in Ontario, of an Ontario court order became obstruction of justice in Illinois.
It's true that was a federal case, but it was also an extreme example of extraterritoriality.
Who are you quoting?
Mitch Guthman's post at the top of comments. Sorry, I didn't attribute it in my post.
Someone with an entrepreneurial mindset might look for medical office space next Disney so a woman on vacation from a Taliban controlled state can stop by and pick up a prescription.
Presumably you mean Disneyland and not Disneyworld.
Criminalizing out of state activity is prohibited by the Commerce Clause of the US Constitution. Example: Texans who vacation in Colorado to partake in recreational marijuana can't be prosecuted when the return (assuming of course they don't bring any weed back with them). Texas tried this iirc, and failed badly at SCOTUS. So this is established law. Yes they're trying again with regards to abortion, but this too *should* fail for the same reasons.
Having said that...Roe v Wade is also established law, for the moment anyway, and is likely to be overturned, so who knows? SCOTUS might let the states do this. But if they do, it will be totally inconsistent with how they rule on interstate commerce on all other issues.
If I had to lay money on it, I'd say that SCOTUS will strike such laws down as violating the aforementioned Commerce Clause, because it would be inconsistent to do otherwise. But we all know how conservatives are about this, too, so I'm not liking the odds.
OK, they are good to have in the bathroom. How does someone get them? Call their doctor? Will the doctor give a prescription in advance? I imagine this is the real barrier, not the $30- $60.
Every woman likely knows whether her OB/GYN or primary care doctor would write an advance prescription, and can check whether her drug plan will cover the costs or whether she'll have to pay the out-of-pocket cost. Women who aren't confident of getting an advance prescription from their own doctors should talk to other women. (None of this pertains to women without regular doctors and without insurance or space cash, alas).
One caveat on what you wrote: Never store pills of any sort in the bathroom (steam and heat can shorten effective period of many drugs)!
Unless you bathroom has like, drawers or something undercabinet that stays dry and temperature stable. Which I suppose isn't a given, but exists.
What would seem to be called for is at least one state in which abortion pills can be obtained without a prescription.
Once legal abortion is gone, we can expect to see an "underground railroad" forming to help women get to providers in other states or countries (or to safe providers locally). (Yes, this will soon be deemed a crime in the majority of states, but decent women [and some men, of course] will put themselves at risk to help women.)
And I suspect the same networks will find ways to procure the pills and distribute them to women. (And this, too, will be a crime.)
Meanwhile, many of us will work harder than ever before at electing pro-choice Democrats to national, state, and local offices so we can, some day, again have a legal right to abortion in this damned country. It will be a long, hard fight.
It is already starting. Abortion funds exist that already are providing transportation and housing, and/or funds to women who want abortions. Right now it might be for their own state, but they are preparing now. Women's right activist groups are advising women to buy an extra Plan B at the pharmacy (don't stockpile or hoard) but to have it available for women in other states who may need it in the future. And these groups are active in get out the vote efforts.
A black market in abortion pills already exists.
Give the potential legal and civil peril for out of state residents who may be aiding and abetting a woman in a Red (aka Taliban) state in obtaining an abortion, whether the event occurred in such Red state or outside the state, it would seem to me that the entities most able to provide such "illegal" abortion medications would be the drug cartels. They understand the legal perils and have proven abilities to provide such services while mostly evading law enforcement.
As long as we are on this catastrophic topic.
I have seen plenty of the usual "why don't Dems do something" which at least marginally informed people realize that at absolute best, that means an abolution of the filibuster in order to attempt some federal right of abortion by statute.
It irritates me to no end that these arguments essentially assume permanent Dem control of congress, because you don't even need to imagine what crazy ass laws the R's will pass if they can do so.
No one mentions that once the filibuster is gone, the minute Republicans get the Senate, they are going to pass a federal law stating that Fetuses are people under the Constitution.
It will go to the Supreme Court and they will affirm it, unless the draft ruling is modified significantly, and potentially even if it is not so modified.
They, presumably, you will have a similar odd situation to the current one where marijuana is illegal federally but legal on a statewide basis, only on a much, much more divisive legal issue.
I’m certainly one who has been calling for an end to the filibuster even though I’m assuming that the Democratic Party will lose control of congress later this year.
I can’t think of any legislation that the Republicans would want to pass once they take control of congress that could be blocked by a filibuster. Even less can I conceive of something the Republicans want (that’s blocked by a Democratic filibuster) for which they would not eliminate the filibuster for that legislation or generally, either because they’ hey value the filibuster intrinsically or because they feel restrained by fears such as you’re describing.
Could you please share one of two examples of something a Republican congress would want to do but couldn’t because of the filibuster?
Completely agree. The filibuster's main use for the GOP has been in preventing their more politically risky moves from becoming law. Let them pass some crazy shit, and reap the rewards.
(And if they no longer care about political repercussions because they no longer allow Democrats to win elections, then it's all moot anyway.)
Mitch, I don't have the time at the moment to look up all the balances in the Senate, but sure, at one time, the R's understood the filibuster as valuable in defense, just like it has been for the Dems.
I mean, the repeal of Obamacare was down to one vote.
Does anyone really think that this current ("current" being the key term) group of R's would hesitate to pass all sorts of nonsense the minute they could.
The filibuster is a form of nuclear weaponry for the Senate, sort of a mutually assured destruction in terms of game theory.
The concern I have is that if you posit to 52/48 senates, there is every possiblity if the Dems have the 52 they will have difficulty rounding up all 52. If the Repubs ever get to 52, they will pass any damn ridiculous bill they can, through reconcilliation or otherwise.
Just look at Kevin's post on the Texas GOP platform.
If memory serves, the time that McCain saved ObamaCare was not something that required 60 votes. If I'm remembering correctly, it was done under the rules for budget reconciliation so as to bypass the filibuster.
The filibuster has never been used to promote anything of a positive nature and it's never blocked anything of a negative nature. In fact, until recently the only thing it had ever been used for was to block civil rights legislation. And, very specifically, you cannot point to a single crazy thing that Republicans have ever been prevented from doing by the filibuster.
In Texas they call the school shootings like the one in Uvalde a Second Amendment abortion. Maybe if they package abortifacients in bullet cases and give them names like AR-15, women in Texas will still have access.
The goal is unlikely to be going after women directly - too much risk of a backlash - but to destroy the infrastructure of abortion throughout the United States.
Wreck clinics financially or otherwise. Prosecute any medical personnel who aid or abet abortions. Ban nationally the morning after pill (which can be done). And so on.
It's a religious obligation for the Pro-life crowd. And, ironically, they see themselves as the abolitionists fighting for the freedom of the unborn, and the liberals are the slave owners.
Women going out of state to have abortions is their Dred Scott in reverse.
I retired from medical practice many years ago, but these medications aren't OTC at this point and require a prescription. There are physicians who prescribe medications "just in case" - e.g. antibiotics if you're traveling to Mexico - or medications that people may use intermittently for chronic recurrent illnesses (e.g. steroids for asthma), but I don't think the abortion pills have been distributed that way, at least on a wide basis (I could be wrong as I'm a bit out of the loop these days). So it would take the blessing of medical organizations like the American College of Obstetrics and Gynecology, and perhaps some guidance from the FDA to allow this. It shouldn't be taken after 11 weeks from last menstrual period and the patient should have follow up. It's not 100% effective (97% or so). So having this be a patient-directed practice has hazard in terms of a few things. And since it isn't something that must be taken in an extremely narrow time range (if a person knows they're pregnant fairly early on), I am not sure this kind of practice would be looked upon favorably by much of the medical community at large, even if they are supportive of abortion rights. Not saying they're may not be real advantages, particularly with restrictive red state laws, but there are likely to be barriers to this.
The Grand Ol` Perverts SAY that women CANNOT have abortion pills because the Catholic Pedophile *Church* wants MORE babies to fiddle with .