“Aid Access” Defying Law by shipping Abortion Pills to States Where Prohibited, But Want Legal Protection

By Randall K. O’Bannon, Ph.D., NRL Director of Education and Research

While Planned Parenthood and some of the other established American abortion chains have tried to work within and around new state regulations, foreign abortion pill promoters like Aid Access have continued to defy state limits and tried to find legal ways around them.

Gomperts’Latest Stunt

Aid Access is a group founded by long time abortion pill activist Rebecca Gomperts, infamous for publicity stunts like the “abortion ship,” the abortion, bus, drone, etc.  More than a decade and a half ago, Gomperts launched an international website called Women on Web selling and shipping abortion pills to women in countries where such pills were illegal. 

In 2018, sensing that while abortion was still legal here, there were many areas in the United States where it was harder to get, Gomperts set up Aid Access to ship abortion pills to women in America.

According to yet another glowing profile in the New York Times Magazine, “Gomperts used her Austrian medical license and prescribed pills to be mailed by a distributor in India – thus operating, she has found, beyond the reach of U.S. authorities.”

Complete sales figures and information on who got the pills are not available but Gomperts reported  mailing abortion pill packets to 4,584 women in the U.S. between mid March of, 2018, when the program started, and mid March of 2019 (Lancet, June 2022).  An earlier New York Times report said that orders for abortion pills from Aid Access tripled in Texas in September of 2021 once the heartbeat law there went into effect, rising to about 1,100 women a month, blunting some of the expected abortion reduction (NY Times, 3/6/22). 

Gomperts reports that there has been another jump in the U.S. as a whole once the Supreme Court issued its decision overturning Roe (Reuters, 6/30/22)

Above the law?

Gomperts has said she doesn’t intend to let federal regulations or state laws be an impediment to Aid Access provision of abortion pills.  She defied a letter from the U.S. Food & Drug Administration (FDA) telling her to stop selling and shipping abortion pills. She sued Alex Azar, President Trump’s Secretary of Health and Human Services, when HHS began blocking payments to Aid Access and seizing its packages.  

After the Texas heartbeat law went into effect, effectively outlawing most chemical abortions, Gomperts told CBS News [CBS News, 9/23/21],  “I don’t care about six weeks” [the gestational limit established by the original Texas law]. “It’s another law that is not based on any scientific evidence, human rights, common sense …. I will provide [prescriptions for abortion pills] until 10 weeks of pregnancy like I’ve always done”[1].

Looking for laws to protect… abortionists

Now with abortion illegal in many of these states and telemedical abortion sometimes explicitly banned, some of Gomperts’ U.S. prescribers seem to be having second thoughts. They still pledge to keep providing pills to women in “red states” where abortion is limited, but say they’d appreciate more legal protection so that they could not be sued, lose their licenses, or face charges.

The theme of the New York Times Magazine feature seems to be a push for some sort of telemedical abortion “shield law.” At the behest of the abortion industry, multiple states have passed laws saying their state will not investigate, arrest, or extradite an abortionist accused of helping a woman in another state, where abortion may be illegal, get an abortion. 

Article VI of the U.S. Constitution governs relationships between the states and generally requires that a person who commits a crime in one state and flees to another is supposed to be, when asked by proper state authorities, delivered up to the first state.  How this applies in circumstances where the abortionist never leaves his or her own state, but simply mails pills to the person in the state where abortion is illegal, has yet to be legally tested. 

For the moment, abortionists from states with the shield laws do not expect to be extradited, though they worry that they could be arrested if traveling to the state where the abortion was performed or if they visit a state without the shield law. 

Things get more complicated

The New York Times Magazine feature doesn’t say so explicitly, but gives the impression that many of these “red state” telemedical abortions may have been handled by Gomperts herself, because of the immunity she presumes to have as a licensed but foreign prescriber. Going forward, this appears to be a problem, particularly if Aid Access means to expand.

Those relying on Gomperts or one of her foreign prescribers may end up having to wait two or three weeks for their pills to arrive from India, and a less sympathetic administration watching for those packages may monitor and seize those shipments before they can be delivered. This is obviously not what Aid Access would consider ideal from a marketing standpoint.

Gomperts and her team already faced a delivery challenge in one form during COVID when flights from India were cancelled and supplies of their abortion pills were cut off.  At that time, other Aid Access prescribers based in the U.S. were able to tap into domestic supplies to make up the difference, but circumstances now are different. This was in the “sweet spot” during the pandemic after the courts and the FDA had authorized telemedical chemical abortion but before Dobbs gave states the authority to make all such abortions illegal.

With more now legally on the line, Aid Access prescribers are more reluctant to prescribe abortion pills in states where these are not legal, and U.S. suppliers less likely to let their pills be shipped there. Aid Access continues to work with what they have, but conditions are holding back any expansion plans.

Strength in numbers?

For now, Gomperts is hoping that a few “providers” in states like Massachusetts can test and see how well these new telemedicine “shield laws” work, enabling Aid Access to increase the numbers of women it “serves.” 

Promoters of telemedical chemical abortions think that increasing their numbers will make it harder for “red states” to police or prosecute them.  Razel Remen, a family medicine physician from Michigan who is one of Aid Access’ prescribers, told the New York Times to “Imagine a very large number of providers prescribing from states with shield laws….It would be really hard to go against all of us. It would challenge the validity of the laws in the red states. It would look terrible for the U.S.”  

Suzanne Poppema, a long time abortionist from Washington state who now works with Aid Access, added, “The more people who are doing it, the harder it would be to find us.”

Looking for other ways around the law

Other schemes have been discussed. Francine Coeytaux, who heads Plan C, a group promoting “self-managed abortions with pills” suggested officially prescribing the pills for “miscarriage management” rather than abortion. Though the process would essentially be identical, so that it would work the same in either case, doctors could legally write the prescription for miscarriage without running afoul of the law, putting the burden on the state to prove otherwise.

For the record, at least one Aid Access prescriber from New York pushed back at Coeytaux’s suggestion, saying that the legal stakes were much higher since Dobbs. “Two years ago, we were talking about how we might lose our licenses. [But now,] The stakes have changed.” With performance of abortion being a felony in several states, with the possibility of prison terms ranging from two to 99 years, the prescriber says “We’re talking about serious criminal charges.”

Gomperts is planning to test mifepristone as a form of birth control, the New York Times reports, trying to expand the drug’s applications. The idea is that if the drug has a legitimate, legal use, it will be more difficult for states to control or monitor its prescription.  

A few other workarounds have apparently already been put in practice, such as having abortion pills sent to an out of state address for pickup, or sent to a mail forwarding service, which may have no idea what they’re passing on.  This way, the pills are shipped to a state where such purchases are legal, but get picked up or resent and used by someone in a state where direct import or use of abortion pills is not officially allowed.

Still committed to the cause

Back in July, Gomperts told NBC News that the Supreme Court’s decision overturning Roe would not change her work. Though she wanted “liberal states” like California and New York to “just make it possible for the doctors and providers there to ship the pills to other states,” rendering her group’s services unnecessary, current plans were not to limit but expand services (NBC News, 7/7/22)

“We are expanding again our capacity, so we can help with all the requests that we get.”

For Gomperts and Aid Access, this means continuing to ship abortion pills to “red states” and “blue states,” no matter the law.

“We will continue to serve women who need it,” said Gomperts. “We’re not going to stop.” 

[1] By the way, this “principled” 10 week limit didn’t hold for very long.  According to the October 4, 2022 New York Times Magazine piece, Aid Access’ current limit is now 12 weeks, enabling it to expand its customer base a couple of extra weeks, despite evidence showing that efficacy decreases  significantly (and complications increase) the farther out one goes.