Lupe stared at the pregnancy test. Two colored lines appeared on the slim plastic tube, confirming what the 26-year-old native of South Texas had feared. She was pregnant. She and her husband weren’t ready for children, but she also knew that terminating the pregnancy could be complicated by Texas’s restrictive new abortion laws, which had gone into effect on September 1, 2021—just five weeks earlier.
Rapidly doing the math from the start of her last period, Lupe realized she was at least four weeks pregnant, perhaps more. Her window for obtaining an abortion in Texas would soon slam shut, if it hadn’t already. Struggling to keep her hands steady, she sat down on the toilet, picked up her phone, and visited the website for Aid Access, a nonprofit based in Austria that has provided American women with prescriptions for medication abortions, known colloquially as abortion pills, since 2018. “I sent an email to Aid Access before I even told my husband the test results,” says Lupe, who asked to be identified by a pseudonym.
A friend who had recently terminated her pregnancy with the help of Aid Access told Lupe that the nonprofit’s Dutch founder, Dr. Rebecca Gomperts, could meet with her virtually and prescribe a pair of medications—mifepristone and misoprostol. Both are approved by the U.S. Food and Drug Administration to induce miscarriage for a woman who has been pregnant for ten weeks or less. Lupe paid $105 for the pills, which were manufactured in India. “I had been paying close attention to the laws Texas was putting in place over the past year because they made me nervous,” she says. “Having, or not having, a baby is a huge decision. I didn’t want to find myself in a position where that decision had already been made for me.”
Since the 1973 Roe v. Wade ruling protecting abortion rights nationwide, Texas has gradually made access to abortions more difficult by enacting legislation that, when pieced together, severely restricts how, when, and where a pregnancy can be legally terminated. State legislators started small, with a 1977 law allowing hospitals to refuse to perform the procedure without providing a reason. Over the years, abortion opponents got more ambitious, as with 2013’s regulation requiring abortion providers to meet standards set for ambulatory surgical centers (Texas subsequently went from having 40 licensed clinics to just 19 before the U.S. Supreme Court struck the law down in 2016). These efforts culminated with last year’s Senate Bill 8, which prohibits abortions once a “fetal heartbeat” is detectable—as early as six weeks into pregnancy—except for medical emergencies.
The law has chilled the work of the state’s remaining abortion clinics. The number of abortions in Texas dropped from 5,404 in August 2021 to 2,197 in September, a roughly 60 percent decrease, according to a report issued in February by the Texas Health and Human Services Commission. Some clinics have stopped performing the procedures altogether while legal challenges to SB 8 play out in courts, while others turn women away if tests detect any activity that could be defined under SB 8 as the “heartbeat.”
But a pair of newly published studies show that many women such as Lupe are seeking other options, to the degree that the overall number of abortions among Texas women may be down only a little more than 10 percent. University of Texas at Austin researchers found that an average of nearly 1,400 women per month traveled to one of seven nearby states for an abortion between September and the end of 2021. In total, that’s roughly eleven times the number who traveled for out-of-state abortions during the same period in 2019. Close to half of the post–SB 8 women went to Oklahoma and about one quarter to New Mexico. The researchers also looked at data from clinics in Arkansas, Colorado, Kansas, Louisiana, and Mississippi. Ten of the 44 clinics in those states didn’t share their data, so the number is likely an undercount.
Interest in medication abortion has likewise increased. Even before SB 8, the pills had become the most common way pregnancies are terminated in Texas. Now they may also be the easiest way, even though a second law passed by the legislature last year—SB 4—criminalized sending the drugs by mail. Another UT-Austin study found that Aid Access received an average of more than 1,100 requests per month from Texas for abortion medication from September 1 through the end of the year. Prior to last September, the organization fielded 11 Texas requests per day. In the first week after SB 8 went into effect, it was handling 138 daily, according to the study, which was published in the Journal of the American Medical Association Network Open in late February. Demand dropped to an average of 30 per day from October through December 2021—still a 174 percent increase compared to before SB 8. This data “makes it clear that just because the Texas Legislature has banned abortion, it doesn’t mean that the need for abortion has gone away,” says lead researcher Abigail Aiken, an associate professor of public affairs. “People are finding other ways to access the care they need.”
Lupe’s experience highlights the predicament these new laws have imposed upon some Texas women—though it also underscores how the provisions of SB 4 are likely unenforceable. “Everyone was so upset about SB 8 that they’ve barely paid attention to SB 4, and that’s a mistake,” says Mary Ziegler, a Florida State law professor who specializes in reproductive legal history and is the author of three books on the impact of Roe v. Wade. “This fight is all about access, and medication abortion is a huge part of the endgame for those working to criminalize abortion entirely. If Roe v. Wade is overturned, this is going to be the next battleground.”
Late last September, Governor Greg Abbott signed Senate Bill 4 into law after delivering the keynote address at the fourth annual Faith, Family, and Freedom Forum at Great Hills Baptist Church in Austin. Abbott said the law would “ban abortion-inducing drugs in Texas”—but it doesn’t.
SB 4 requires physicians to confirm a pregnancy with an in-person examination before prescribing abortion medication and to conduct a follow-up exam two weeks after the medicine is taken. It also forbids the prescribing of abortion pills to a woman who’s more than seven weeks pregnant, even though the FDA says the medication can be safely used for three weeks longer than that. The law makes it a state jail felony, punishable by up to two years in jail and fines of as much as $10,000, to provide the medication by mail.
Nevertheless, Dr. Gomperts of Aid Access told CBS News last September that she planned to continue offering abortion-pill prescriptions to Texans, regardless of the new restrictions, which she said are “not based on any scientific evidence, human rights, or common sense.” Remote providers likely have little fear of prosecution in Texas, as the enforcement mechanisms of the law are murky at best. Elisa Wells, cofounder and codirector of Plan C, a Portland-based project that provides information about medication abortion access, says Texas can ban medicated abortion “all they want, but what are they going to do about it? They can’t patrol every mailbox. It’s impossible.”
Ziegler hedges that the law might not be impossible to enforce, but it will be difficult for officials to find and prosecute providers. “Proving a violation of this particular law requires accessing people’s mail, which is a federal crime,” she says. “On top of that, since Texas doctors are banned from prescribing this online, the only way these drugs will be prescribed and sent out in violation of SB 4 is through doctors not living in Texas. The only person Texas would have a chance of prosecuting would be the pregnant woman, and the law explicitly says that isn’t an option.”
Gomperts and the other two Europe-based Aid Access doctors are essentially out of Texas law enforcement’s jurisdiction. International extradition treaties are usually upheld only when there’s a violation that is considered a crime in both countries, Ziegler says, so Austria would be unlikely to acquiesce to such a request regarding Aid Access or its employees. Even extradition of a provider from another state could be uncertain. “If someone is caught mailing these drugs to a pregnant person from Florida or another state with a Republican governor, there’s a chance they would agree to hand that person over, but a liberal governor has no reason to do that,” she says.
Texas law enforcement officials can seize any property in the state if they deem that it has most likely been used for, or acquired by, breaking state law, but this is a moot point in regard to an organization such as Aid Access, which has no assets in the state. Gomperts told Texas Monthly via email that she has long continued traveling without issue between Austria and other places in the world where she offers abortion services that are illegal locally, including within the United States. (Last year, Texas was one of six states to pass laws forbidding the providing of abortion medication through the mail.)
The difficulty of enforcing SB 4 might help explain why the law so far has faced no court challenges, Ziegler says. Another possible reason: in December 2021, the FDA made permanent what had been a temporary pandemic measure to allow abortion medication to be distributed by mail. Although the FDA ruling does not nullify SB 4, it has created a legal gray area, according to Ziegler. “There’s a general doctrine that federal law that is designed to occupy the field, to cover everything, can preempt contradictory state law. But there’s not a lot of precedent or clarity on when the FDA can do that,” she says. “If the Biden administration did want to take the position that SB 4 is preempted, there’d be a lot of uncertainty about how that would work out because we just don’t have a lot there on the books. It’s not a slam dunk the FDA could do that, and there’s a lot that’s uncharted legally.”
Eddie Lucio Jr., a Democrat and state senator from Brownsville who sponsored SB 4 and is not seeking re-election after thirty years in the Senate, insists that the law is enforceable. But in a phone interview with Texas Monthly, he wasn’t able to explain the mechanism of that enforcement. “How you go about that, well, I haven’t really dealt with that type of conversation,” Lucio says. “It’s on the books, and now it will be up to law enforcement to use it.”
Kimberlyn Schwartz, a spokeswoman for antiabortion group Texas Right to Life, also asserts that SB 4 is enforceable—though only against abortion-pill providers in the U.S. (Planned Parenthood and some others see patients virtually to prescribe abortion medication by mail in the two-dozen states where those practices remain legal, but not for Texans.) “If a violation occurs under SB 4 with an out-of-state actor,” Schwartz told me, “the governor of Texas would coordinate with the governor of the other state to hold the person or organization accountable under our law.” (When asked whether Schwartz’s assessment was accurate, Abbott’s office referred Texas Monthly to the statute itself and otherwise declined to comment.) Even so, Schwartz concedes that “the scope of SB 4’s enforcement does not include international organizations” such as Aid Access.
Lucio and other proponents of SB 4 argue that the law is necessary to protect women’s health. “These drugs are not without risk,” he says. “I believe it’s unconscionable not to have oversight and have a doctor verifying a woman’s pregnancy and ensuring that she ends her pregnancy safely.” The text of SB 4 declares that mifepristone (also known as Mifeprex or RU486, it first hit the global market in the eighties and was legalized in the U.S. in 2000) “presents significant medical complications.”
Yet multiple peer-reviewed medical studies have found low rates of complications when women who do not have abnormal pregnancies take the drugs within the ten-week window authorized by the FDA. A 2017 report in the UK journal BMJ concluded that about 95 percent of the medicated abortions in the study succeeded without surgical intervention. A 2020 study in the journal Contraception found that less than one percent of medicated abortions resulted in excessive bleeding requiring emergency intervention. “The claims that this form of access is dangerous are patently wrong,” says Ushma Upadhyay, a University of California–San Francisco professor of public health who specializes in reproductive medicine. “Programs like Aid Access aren’t FDA-approved, but they are medically safe.”
Upadhyay published her own research examining the safety of medication abortion that had been provided via telemedicine last August in the JAMA Network Open. She found that only 5 percent of those who used a remote provider to get prescriptions for medication abortions required any follow-up medical care, while less than 2 percent experienced complications that resulted in emergency care. Because of the scientific consensus regarding the safety of medication abortion, Gomperts has said she believes women shouldn’t need a doctor’s assistance to terminate their pregnancies if they’re less than ten weeks pregnant.
Many Texas women were heeding such advice even before the new state restrictions on abortion. Texas Health and Human Services says some 53 percent of women who terminated their pregnancies during 2020 did so via medication abortions. The COVID-19 pandemic may have played a role in that. During the period just after Abbott issued an executive order in late March 2020 temporarily suspending most abortion procedures (as well as all elective medical procedures) as a pandemic-fighting measure, Aid Access fielded 94 percent more requests from Texas than expected, according to a UT-Austin study published in late 2020.
Interest in medication abortion steadily increased in 2021, according to Elisa Wells of Plan C. The day SB 8 went into effect last September, traffic on Plan C’s website spiked from its usual 500 page views per day to more than 25,000. The following month brought nine times as many visitors to the site as usual, more than 135,000 total, with at least one quarter of those from Texas. The options for Texas women to obtain medically supervised abortions are limited. They can attempt to have a surgical abortion before the six-week cutoff point, they can make plans to travel to another state—or they can contact Aid Access.
Lupe managed to get an appointment with Planned Parenthood soon after her positive pregnancy test, but the doctor there told her that, although she appeared to be only five weeks pregnant, a fetal heartbeat was already detectable. Because of SB 8, Planned Parenthood could not assist her in ending her pregnancy. Lupe considered traveling to Colorado for the procedure, but decided instead to wait for the abortion pills she’d already ordered.
When the medication arrived a few days before Halloween, Lupe immediately hid the pink envelope in her purse, eyes darting nervously around to see if anyone at her apartment complex might be watching. She was eight weeks pregnant. “It wasn’t even illegal yet,” Lupe says. “But I still felt like a criminal.”
In fact, it remains legal in Texas for pregnant women to use abortion pills to end their pregnancies, however they received them. SB 4 exempts these users from criminal punishment. The law’s penalties apply only to the providers. But Farah Diaz-Tello, an attorney with If/When/How, a national nonprofit that provides legal advice and representation to those seeking abortions, says Texas’s abortion laws have created “an aura of illegality” around abortion pills. “The fear of prosecution alone will keep many from using these drugs,” she says.
When Lupe took her first dose, two hundred milligrams of mifepristone, she prayed she wouldn’t have any complications. She popped the pill and lay down on her bed. After reviewing Lupe’s medical history, Gomperts had advised her that she had a slightly higher chance of complications because of a cesarean section six years earlier, at the end of a traumatic pregnancy when she was only twenty.
That first pregnancy, with a previous partner, had also been a surprise, but a happy one. Everything was going smoothly until an OB-GYN appointment twelve weeks into Lupe’s pregnancy. “I knew something was wrong when the technician got quiet,” she says. A week later, tests confirmed it—her baby, a boy, had severe posterior urethral valves, a rare malformation affecting one out of every eight thousand male fetuses. Extra flaps of tissue in the urethra were preventing urine from leaving his bladder, damaging his kidneys and slowing his development to the point that, once he was born, even breathing would be a challenge. He would require lifelong care, her doctors explained.
Lupe signed a do-not-resuscitate order for her son, instructing the medical team not to intervene if he went into distress after birth. “That was when I decided that a woman should really have a choice,” she says. “Those were awful decisions I had to make, but I was thankful that no one else was making them for me.”
Her baby entered the world with such a loud wail that, for a moment, Lupe thought maybe the doctors had been wrong. They had not. An hour after his birth, the boy died in her arms. Four years later, Lupe is married to a different man, and together they’ve decided to build a life that, for now, does not include having children. “Having my son changed me,” Lupe says. “It taught me so much about myself, and how I need to be really ready” before bearing another child. “And I know that’s not where I am right now.”
Lupe experienced no ill effects from the mifepristone, which stops the body from producing progesterone, the hormone that allows a pregnancy to progress. So, two days later, on Halloween night, she stuck the second medication, six hundred micrograms of misoprostol, under her tongue. Within an hour, she was experiencing cramps “that hurt so much they felt like contractions” as the drug softened her cervix and prompted her uterus to begin flexing. She moved between the bed and the bathroom as the medication hit her stomach as well. For the next six hours, she endured cold sweats, diarrhea, and sharp pain from her abdomen while her uterus contracted and expelled blood, clots, and clumps of bloody matter—the remains of the fetus—all of which Aid Access had told her to expect.
When a medication abortion like Lupe’s is successful, the symptoms of pregnancy—tiredness, nausea, cramping, a lack of appetite—begin to abate. After that, any woman who wants to be certain it was successful needs to wait about four weeks for the pregnancy hormones to leave her system and then take another pregnancy test. Most women will have fluctuations in their menstruation cycles for a month or two.
That’s been Lupe’s experience. She says her period has continued to be irregular, heavy, and painful, but she doesn’t want to risk going to the doctor about it. “I’m afraid to tell my doctor,” Lupe says, even though she hasn’t broken any laws. “What if she reports me? I don’t think I’ve done anything wrong, but I can’t be sure how anyone will react.”