The Supreme Court Can’t Stop Underground Abortion Networks. And They’re Thriving.

A common, safe, and effective abortion pill could be yanked from the market or placed under restrictions by midnight Friday, depending on the outcome of the first major abortion case to hit the Supreme Court since Roe v. Wade was overturned last year. Abortion clinics across the country have spent weeks bracing for this moment, consulting with lawyers and rapidly recalculating if and how they will perform abortions if they’re forced to change how they use the drug, mifepristone.

But regardless of any ruling from the Supreme Court on the fate of mifepristone, the nation’s highest court can only control the legal market for the drug. It has no real ability to dictate what happens within the thriving world of underground abortion networks—where mifepristone has continued to flow and where demand for the drug will likely skyrocket, rather than fall, if the Supreme Court tries to cut off the U.S. health care system’s supply.

Traffic on Plan C, a website that provides information about how to get abortion pills, has roughly doubled every time there’s a new development in this case, co-founder Elisa Wells told VICE News.

“These systems are only strengthening in the face of these unjust rulings. They’ve been around for years and have not been able to be stopped in a large-scale way,” said Wells, adding that Plan C is constantly being contacted by new entities that want to ship abortion pills. “The opportunities for buying pills have only increased over time.”

The Supreme Court is weighing whether to suspend the Food and Drug Administration’s 2000 approval of mifepristone, as a Texas federal judge wants, or to allow it to remain on the market but under heavy restrictions, as the U.S. Court of Appeals for the 5th Circuit suggested. Alternatively, the justices may leave mifepristone alone or let the court challenge over the drug play out, with or without implementing any limitations.

The vast majority of research has found that mifepristone is safe. Medical experts broadly agree that self-managing your abortion using pills in the first 12 weeks of pregnancy is also safe. However, there are legal risks. Although most states do not ban people from inducing their own abortions, experts have long warned that, if a local anti-abortion prosecutor wants to charge someone for doing so, they’ll find a statute that’s elastic enough to do it. Between 2000 and 2020, at least 61 people across 26 states were criminalized for alleged involvement with a self-managed abortion.

For obvious reasons, it is profoundly difficult to track how many people have undergone self-managed abortions. But in the last six months of 2022, after the overturning of Roe in June, at least 20,000 packets of abortion pills were shipped to people in the United States through clandestine channels, VICE News reported earlier this year.

Abortion rights advocates are particularly fearful that the Supreme Court, with its 6-3 conservative majority, may take the unlikely step of commenting or even ruling on the Comstock Act, a long-defunct 1800s anti-obscenity law that anti-abortion activists are now trying to use to ban the mailing of all abortion-related materials. This would amount to a nationwide ban on all in-clinic abortion methods, because clinics get their instruments and medications shipped to them. 

However, even banning mailing such materials likely wouldn’t stop the people who covertly ship abortion pills. After all, if they’re mailing abortion pills to a state where the procedure is banned, they’re potentially already breaking the law. Abortion bans typically apply to people who help provide abortions, not those who receive them.

“These businesses that are mailing the pills to people are, as I said before, they’re operating outside the margins of things,” Wells said. “So they’re not complying with the laws that might pertain to them right now. Comstock doesn’t make any difference.”

Nurse practitioner Christie Pitney, a midwife with Forward Midwifery and co-founder of Abortion Freedom Fund, a fund for telehealth abortions, told VICE News earlier this year that one of her “scariest thoughts” is that the government will start to search the mail for abortion pills. But the Postal Service already struggles to police illicit drugs: A 2018 report from the Postal Service’s Office of the Inspector General found that, out of 104 “drug product sites” surveyed by the office, 92 percent used the Postal Service—and almost half of those sites were evidently so confident that they could evade detection that they promised to re-ship lost packages through the Postal Services.

“With abortion generally, we have to keep our eyes on laws that are trying to restrict cross-state travel and cross-state commerce,” Pitney said. “But I also truly think that no matter what laws and bans are out there, people are going to find a way to get access to the care that they need.”

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