Last September, a Pennsylvania woman named Jennifer Whalen ordered mifepristone and misoprostol online for her 16-year-old daughter, who wanted to end an unplanned pregnancy.
Since earning long-overdue Food and Drug Administration approval 15 years ago, mifepristone, in combination with misoprostol, has been widely prescribed to women in the United States seeking to end early-stage pregnancies. Taken together and correctly, the drugs are 95 percent effective in ending a pregnancy and cause serious side effects in fewer than 1 percent of women who take them. (Misoprostol, which is 85 percent effective in ending a pregnancy on its own, is available by prescription in the United States.)
Taking these pills is known as medical — as opposed to surgical — abortion. Despite their safety and efficacy, mifepristone and misoprostol are tightly regulated and, in many places, are difficult to get. The pills are legal in the U.S.; taking them without a prescription is not.
For Whalen’s daughter, the abortion went as planned. After taking the pills, the daughter experienced menstruationlike bleeding and stomach pains, which are common and temporary side effects of the pills. Her mother took her to the hospital, where she was examined and sent home without any further intervention.
Without a long and costly journey (the nearest clinic was 75 miles away), without harm beyond the bleeding and stomach pain, without a long-term hospital stay and for a fraction of the $300 to $600 cost of a surgical abortion (the pills cost $45 online), the girl was no longer pregnant. She returned to school a few days later. As of last September, she was attending college.
That should have been the end of the story. But the hospital reported Whalen to state child-protective services for suspected child abuse. How did it know she obtained the pills for her daughter? Because, worried that the information might be vital to her daughter’s care, she told them.
That decision, made out of concern for her child, put Whalen in jeopardy. Approximately one year after she helped her daughter, the local DA charged her with a felony for offering medical consultation about abortion without a medical license and three misdemeanors: endangering the welfare of a child, dispensing drugs without being a pharmacist and assault. Because her record was spotless save for a 1994 underage drinking charge, the judge in the case could have given her probation. Instead, he sent her to jail, excoriating her at the sentencing for “taking life and law into [her] own hands.”
Perhaps he should have questioned why Whalen had to resort to buying a medication used for decades by millions of women around the world online and from an unknown source. The answer is that when it comes to abortion, onerous legal restrictions rooted in misogyny, not medicine, abound, particularly in the United States. Abortion has been legal in the U.S. since 1973 — yet it remains punishingly restricted at the state level, often by legislators who lack even a basic understanding of female anatomy. In the last four years, over 70 U.S. clinics have shut down or stopped performing abortions. From 2010 to 2014, states adopted 231 provisions aimed at restricting access to abortion.
Many states require that medical abortions be supervised by doctors only, as opposed to other health care providers, although explaining the regimen and dosage to a patient hardly requires a medical degree. Some states require women to travel to a surgical center to take the pills. Others require doctors to follow an out-of-date FDA protocol rather than the easier and more effective clinician-tested protocol now in common use. In more than a third of the United States, it is impossible to obtain a legal, medical abortion without unnecessary expense and inconvenience.
In Indiana and 17 other states, it is illegal for a doctor to supervise a medical abortion via telemedicine, despite the fact that, according to Dr. Dan Grossman, a professor in the department of obstetrics, gynecology and reproductive sciences at the University of California at San Francisco, “Research has shown that telemedicine provision of medical abortion is safe and effective.”
It is, of course, not 100 percent safe for women who cannot travel to a clinic to buy pills online, take them at home and not tell their doctors, although many are doing so. As Emily Bazelon noted in her excellent piece on the Whalen case, scam sites abound. It’s easy to end up paying for fake pills or to lack vital information about how to use them. “I don’t believe it is ever medically necessary to tell your doctor you had a medical abortion,” said a doctor I spoke with who practices family medicine in the Bronx in New York, but if a woman buys pills on the black market not knowing “what the doses are or what’s in them” and something goes wrong, “it might be important [for your health care provider] to know what caused the problem in the first place.”
A DIY abortion obtained via pills from the Internet is far from ideal. But states around the country are leaving women with no good options. Most women cannot afford to miss several days of work to travel many miles to the nearest clinic or pay hundreds of dollars in fees for unnecessary tests. They do not want to receive unasked-for state-mandated counseling or abide by state-imposed waiting periods. What they want is to make a decision and carry it out as early as possible in a pregnancy. Half of pregnancies among U.S. women are unintended, and 4 in 10 of these unintended pregnancies end in abortion. It is common for women to become pregnant at some point in their lives, common to bear children and common to get an abortion. In a truly egalitarian society, all these experiences would be as safe and easy as possible.
The FDA’s approval of mifepristone was a crucial step toward improving the status of women in the U.S. But until this drug is regulated and restricted on medical grounds only, women will keep doing what they deem necessary for themselves and their families, in defiance of the law. And until we repeal these unjust laws, women will be punished for violating them by officials, even those, like the judge in the Whalen case, who have the authority to do otherwise.
Statements from the anti-abortion group Americans United for Life (AUL), the organization behind many recent restrictions on mifepristone, say it all. “States can’t outlaw abortion,” AUL’s vice president of government affairs, Dan McConchie, told The Atlantic. “That does not mean there’s a constitutional right to abortion being convenient.”
His assertion reveals AUL’s true aim: to stop women from making decisions it doesn’t approve of, not to protect them from the theoretical consequences of their actions. Women who seek abortions know the risks. What really bothers anti-abortion activists is that an overwhelming majority of them come away from the experience with little or no physical pain and, even years later, no regrets.
A low-risk, noninvasive, highly effective means of ending an unwanted pregnancy exists. Women shouldn’t be sent to jail for exercising their right to use it.