Abortion Pills Have Changed the Post-<em>Roe </em>Calculus

For all the upheaval that followed the overturn of Roe v. Wade, it did not dramatically change the most basic fact about abortions in America: the number. Since 2022, abortions in the United States have held steady—even increased slightly, based on the best of limited data. One major reason? The rise of abortion pills, which are now used in the majority of abortions in America. Every month, thousands of women in states where abortion is banned have been able to discreetly order the pills by mail and take them at home. Even with abortion bans in place, the availability of these pills makes these rules less absolute than the anti-abortion movement would like.

“Abortion pills pose the single greatest threat to unborn children in a post-Roe world,” according to Project 2025, the Heritage Foundation’s conservative policy playbook. They are “death by mail,” according to Students for Life; Kristan Hawkins, the organization’s president, told me that “it’s a travesty what has unfolded under the Biden-Harris FDA.” And the anti-abortion movement is formulating plans to target the pills through a number of legal and political avenues—some of which could apply regardless of who is elected president next month.

Abortion pills had accounted for a steadily growing share of abortions in the U.S. for years, but in 2021, the FDA made them significantly easier to obtain: The pills are actually two different drugs, mifepristone and misoprostol, and the agency nixed a long-standing requirement to prescribe mifepristone only in person. With that, abortion pills became available by mail. The FDA cited COVID-related risks in its 2021 decision, but anti-abortion advocates immediately decried the move—and the policy has remained in place beyond the pandemic. After the overturning of Roe in 2022, 21 states passed new abortion bans or restrictions, but more than a dozen states, including New York and California, took steps to keep abortion pills available by mail, even in restricted states, by passing “shield laws.” These laws explicitly protect doctors, midwives, and nurse practitioners who use telehealth to prescribe the pills by mail across state lines.

Since then, an average of 6,000 to 7,000 people a month living in states with complete or six-week bans have been able to get abortion pills via telehealth, according to data from the Society for Family Planning, which surveys abortion providers in the United States. This number does not include people who had an abortion outside the formal health-care system, for instance by using pills ordered from overseas. And in states where abortion remains legal, the number of abortions—and the proportion involving abortion pills—also rose from 2020 to 2023, according to Guttmacher Institute data. (The number of women traveling to other states for abortions also doubled in this time, which is another reason abortions have not significantly fallen post-Roe.)

“The anti-abortion movement hasn’t quite figured out what to do with this,” says Greer Donley, a law professor at the University of Pittsburgh, who helped draft the nation’s first shield law. The shield laws have not yet been directly challenged in court. And when anti-abortion groups tried to go after the FDA’s original approval of mifepristone via a lawsuit, the Supreme Court dismissed the case this year for lack of standing.

Still, last week, three states—Missouri, Kansas, and Idaho—sought to revive that case, asking courts to reinstate certain restrictions on mifepristone. And although a President Kamala Harris would be likely to stick to the current FDA policy for abortion pills, a Trump administration could change those policies directly. It could, as my colleague Rose Horowitch has reported, curtail access to mifepristone simply by reinstating the in-person requirement for dispensing the drug—or just pull the FDA’s approval of mifepristone altogether. (In August, Donald Trump expressed openness to cracking down on abortion pills; his running mate, J. D. Vance, walked that position back a few days later.) Anti-abortion activists are hoping that Trump will enforce the long-dormant Comstock Act, a 150-year-old anti-obscenity law that bans the mailing of material “intended for producing abortion, or for any indecent or immoral use.” This could criminalize the mailing of abortion pills, even without the passage of a federal abortion ban, though anti-abortion activists have also suggested that Trump keep quiet about Comstock until he wins. (Trump, for his part, refused to share his views on the Comstock Act for months, before finally saying that he would not enforce it.)

Regardless of who becomes president, the anti-abortion movement is devising ways to restrict abortion pills through state governments too. Shield laws, for example, could be directly challenged if a red-state prosecutor goes after a doctor prescribing the pills from a shield-law state. Linda Prine, a doctor with the nonprofit Aid Access, which sends pills to states with abortion bans, told me she no longer leaves her home state of New York. Providers working under shield laws, she said, are all being “super careful.”

Anti-abortion groups could also test the limits of shield laws in more indirect ways. In Texas, says John Seago, the president of Texas Right to Life, pro-abortion groups have put up billboards advertising abortion pills: “You can go to people putting up the billboard. That’s aiding and abetting.” His group has also encouraged Texas lawmakers to introduce new laws that create liability for internet-service providers or credit-card-processing companies involved in abortion-pill transactions.

In Louisiana, where abortion is already banned, a law went into effect this month further restricting both mifepristone and misoprostol as “controlled dangerous substances.” The law is named after a Louisiana woman whose husband secretly slipped misoprostol into her drinks, and anti-abortion activists have used cases like hers to argue that the pills need more regulation. “A faceless, doctorless process to obtain abortion drugs enables abusers to poison or coerce women and girls,” Emily Davis, the vice president of communications for Susan B. Anthony Pro-Life America, said in a statement. But the law is also affecting routine medical care unrelated to abortion: The two drugs are commonly used in miscarriage and postpartum management, and hospitals in Louisiana have been doing timed drills to make sure staff can quickly access the locked closets where the medications now need to be kept.

Anti-abortion groups are also trying creative approaches to regulating abortion pills—such as through environmental regulations. Hawkins told me that Students for Life will be working with state legislatures next year on laws such as those requiring the disposal of fetal tissue from abortions as medical waste. These laws are designed to put the onus on the provider of abortion pills—presumably a doctor operating under a shield law—and states could then go after the provider for environmental-cleanup fees or fines, Kristi Hamrick, the organization’s vice president of media and policy, told me.

The new prevalence of abortion pills has opened up a new frontier, and the political and legal fights ahead may look quite different from those in the past. “We innovate, and we keep coming back. Our work is definitely just beginning,” Hawkins said. Seago, in Texas, told me he does not expect every attempt to restrict abortion pills to work. In the decades before Roe was overturned, he said, states introduced a number of different restrictions to limit access to abortion. Some worked. Some didn’t. With abortion pills, he told me, “we’re not expecting a silver bullet.” But activists like him are demanding that lawmakers try to stop their use nonetheless.