The changed nature of abortion care makes the potential answers to these questions all the more complicated. In today’s world, roughly four in 10 abortions occur via a pregnant person taking medication, often in the comfort of their own home. That means the patient doesn’t have to be in the same location as the provider prescribing the medication. In fact, the pandemic dramatically accelerated the use of telemedicine for abortion care, allowing women to receive an abortion without ever stepping foot in a clinic. In light of this new reality, a whole host of other tricky questions will arise if Roe falls: Can a state prosecute women taking pills shipped directly to their home from out-of-state providers? Can a state prosecute a woman for taking pills in her home state if she picked up the medication in a state where abortion is legal? If a patient takes the pills in one state where abortion is legal but the abortion isn’t completed until she goes back home, where abortion is illegal (the entire process is usually quick but can take several days), has she violated her home state’s law?
The legal complexities will be endless. In our federal system, states have to work within federal law, and a federal government that wants to protect abortion rights, as President Joe Biden announced he would last week, might employ some creative strategies to limit state law. Presently, the FDA is considering whether to lift unnecessary restrictions on medical abortion, including the requirement that patients pick up the pills at a medical facility. The FDA has temporarily suspended that rule, allowing wholly virtual clinics to prescribe medication and ship it directly to patients. Imagine if the FDA went further, and not only removed its own restrictions that limit the medication’s use but also prohibited states from imposing their own restrictions. Would that federal regulation preempt and therefore invalidate state restrictions on medical abortion? Relatedly, could the federal government take the bold action of leasing property to or establishing its own abortion clinics on federal lands, such as in federal-government offices or in national parks? Could federally recognized Native American tribes do the same, as the president of the Oglala Sioux Tribe suggested when South Dakota attempted to ban abortion in 2006? What about the federal government, as one commentator suggested, hiring abortion providers so that they are federal employees and thus immune from state lawsuits under statutes like S.B. 8?