In 1973, Roe v. Wade established the right to an abortion across the nation. Now in 2022, the overturning of Roe v. Wade means more than a ban on surgical abortions. Medication abortions in some states could soon be banned too.
“Yesterday’s Supreme Court ruling makes it very clear that states can substantially restrict access to abortion,” said legal analyst Dan Eaton. “The question arises whether a woman can get around that by engaging in telemedicine with a doctor in a state that allows abortion, like California.”
Eaton says the answer can be legally murky depending on the scenario. If a woman never physically leaves her state where abortion is not allowed, has a telemedicine call in a state where abortion is allowed, has the prescription sent to her, there is legal peril "to the doctor or anyone else who helps the woman engage in this circumvention.”
He questioned whether or not it would even be enforced.
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“There's a real question about whether a state that doesn’t even license a particular doctor in that state that’s giving her the abortion pill would have any power over that doctor except potentially civilly,” Eaton said. “I suppose they could seek damages from the doctor… But there’s some effort in California to block those kinds of actions by people in these restrictive states who want to stop helping women get abortions whether by pills or elsewhere.”
If a woman travels to a state where abortion is allowed and has a telemedicine call there, can the doctor then send the prescription to her in a state where abortion is illegal? “The general feeling is that no, that would not be OK," said Eaton. "It would be better to have the prescription sent to an address in the state where she had her telemedicine call.”
He said one reason someone would still use telemedicine even though one has already travelled to the state is because it’s just difficult to get appointments in clinics.
Having said all that, Eaton says it could all be moot. A big question looms: Can states ban abortion pills already approved as safe and effective by the Food and Drug Administration? “The courts are going to have to resolve that and maybe ultimately the Supreme Court will have to resolve. In the meantime, there is legal peril on all sides,” said Eaton.
U.S. Attorney General Merrick Garland has taken the position that states may not ban the drug used in abortion pills.