Members Only | January 12, 2023 | Reading Time: 4 minutes
Abortion has been globalized
The gates are gone. So are the gatekeepers.
Sturm und Drang is a critical element of the Republican Party’s approach to abortion. The more gothic and grotesque the language – “the sanctity of life!” “abortion is genocide!” – the better tactical advantage they create.
It’s gaslighting, basically.
Yesterday’s vote in the House is an example. The Republican majority passed what they called “born-alive” legislation that requires health care providers to save children who have survived abortions. Cutting down Roe wasn’t enough, I guess. It lacked a certain je ne sais quoi.
Any child born alive, whether an abortion is involved, is not going to be neglected by health care providers, because, yanno, that would be murder. The House Democrats were united against it. The Senate won’t take it up. It’s going nowhere. But it doesn’t matter. The House Republicans got what they wanted – news headlines with the word “born-alive” in them so Republican voters can pretend they care.
While the Republicans wax gothically to pass legislation controlling women, it’s women’s lives that are turned gothic when it becomes law. Florida Congresswoman Frederica Wilson took to the House floor Wednesday to relate the time when her child died in utero.
“I shared my experience of being forced to carry my dead baby,” she wrote on Twitter. “Prohibited by law to induce labor, I carried my deceased child inside me for two months and almost died.”
But while the Republicans Sturm und Drang their way toward making the Democrats look like unseemly celebrants of infanticide, the Biden administration has been quietly creating legal and procedural conditions in which women’s lives can again be made civilized.
Details now in focus
The anti-abortion crusade began decades ago when abortion clinics were the only place to have the procedure. They were the gates. The Republicans deemed themselves gatekeepers. Stop pregnant people from getting through the gates and stop them from having abortions.
That was then. Medication abortion has changed things radically. It has decentralized abortion so gates and gatekeepers are no longer relevant. Mifepristone blocks the hormone needed for pregnancy development. Misoprostol induces contractions. Together, they stymie law enforcement’s ability to enforce anti-abortion laws.
The president appears to understand the big picture.
After Roe’s fall, Biden took to the podium to remind Americans that the only way left for restoring the constitutional right to privacy, and abortion, was for the Congress to enshrine it into law. This was in June. The midterms were coming. “Roe is on the ballot,” he said.
Naturally, abortion’s influence on the congressional elections got most of the attention. Getting less was the president’s promise to meet women’s health care needs by flexing the executive branch. He was short on details. But earlier this month, they came into focus.
What you don’t know
When I say “quietly creating legal and procedural conditions,” I mean that literally. The Food and Drug Administration did not announce a new rule allowing drug stores to offer “abortion pills” (mifepristone).
According to the Times, the agency merely “updated its website to reflect the decision and added to a series of questions and answers.” (Misoprostol didn’t need a rule change. It’s a commonly used drug.)
Until now, mifepristone could only be sold via specialized pharmacies, doctors and clinics. With the new FDA rule, however, any pharmacy can offer mifepristone. They have to satisfy certain criteria. Patients still need a doctor’s prescription. But otherwise, you can get mifepristone from your neighborhood CVS, Rite-Aid, Walgreens — or by mail-order.
I put “by mail-order” in italics, because states with severe abortion restrictions are already targeting “abortion pills.” That’s where the second half of the story begins. Not only has the FDA widened the availability of mifepristone. The Department of Justice has cleared the way for the United States Postal Service, United Parcel Service and Federal Express to deliver it to pregnant people who need it.
So even if your state totally bans the sale of mifepristone in drug stores (which is unlikely, but let’s suppose for a moment), you can still get the drug through the mail. In a 21-page opinion posted online on January 3 (another “quiet” creation of conditions), Christopher Schroeder, the head of the Department of Justice’s Office of Legal Counsel, said:
There are manifold ways in which recipients in every state may use these drugs, including to produce an abortion, without violating state law. Therefore, the mere mailing of such drugs to a particular jurisdiction is an insufficient basis for concluding that the sender intends them to be used unlawfully (my italics).
“Intends” is the key word. As long as the sender presumes legal usage of mifepristone, the sender does not risk breaking state laws restricting or banning abortion, nor does the sender risk breaking a 150-year-old federal statute regulating “vice” in the mail. (You can thank Connecticut’s renown nemesis of “smut,” Anthony Comstock).
“Those who send abortion drugs to states with strict abortion laws,” wrote Politico’s Alice Miranda Ollstein and Josh Gerstein, summing up Schroeder’s opinion, “won’t ‘typically’ have the degree of knowledge necessary to violate the federal law known as the Comstock Act.”
What you don’t know can’t hurt you.
Slow and quiet
The Biden administration may seem like it’s scrambling to catch up with states banning or restricting abortion. In fact, it’s scrambling to catch up with overseas providers of mifepristone, namely in India.
After the Supreme Court cut down Roe, according to Businessweek, “Indian drop-shippers — companies that fulfill individual orders for medicines such as antidepressants, erectile dysfunction drugs and other medications — saw a surge in demand for abortion pills.”
That surge came from western abortion rights groups Aid Access in the Netherlands and Plan C in the US. Plan C has done numerous tests to verify the legitimacy of Indian generic drugs that arrive by mail. (None failed.) India’s generic drug industry is the world’s largest, according to Businessweek. It sees international sales revenues of $24 billion.
That will almost certainly grow post-Roe.
In the absence of congressional action, these rule changes can and certainly will be reversed with the next Republican administration.
What’s irreversible, however, is the larger scope of the conflict over the right to privacy and abortions. The gates are gone. So are the gatekeepers. Pharmacy chains stand to profit. The US mail is protected by federal law. Indian drugmakers don’t care about US law. Checking incoming packages would grind down the pace of global commerce.
Abortion has been decentralized. The genie won’t go back in.
The Biden administration’s language isn’t gothic or grotesque. It’s no Sturm und Drang, for sure. It’s slow. It’s quiet. It gets the job done.
John Stoehr is the editor of the Editorial Board. He writes the daily edition. Find him @johnastoehr.