With all eyes on the Texas law that bans most abortions after six weeks of pregnancy, another bill regulating the use and distribution of abortion medications — and creating a jailable offense for those who violate it — has made its way to Gov. Greg Abbott’s desk.
If signed into law, Senate Bill 4 could have unique consequences for Borderland communities like El Paso, where the abortion pill misoprostol can be bought just across the bridge at Mexican pharmacies.
Under the bill’s language, “any act of giving, selling, dispensing, administering, transferring possession, or otherwise providing or prescribing an abortion-inducing drug” would be punishable with state jail felonies, which carry fines of up to $10,000 and between 180 days and two years of imprisonment.
Texans living near Mexico have a long tradition of traveling south to access abortion services.
“If you’re living or working in the borderlands, you know how frequently people find ways to meet their health care needs by going over borders or seeking other ways to get medications,” said Farah Diaz-Tello, senior counsel and legal director for If/When/How, a national reproductive justice nonprofit. “Abortion is no different than that.”
Authored by state Sen. Eddie Lucio Jr., D-Brownsville, SB 4 would not impose criminal penalties on people who take abortion medication to end a pregnancy. But the statute could be used to prosecute anyone who helps them get that medication, Diaz-Tello said.
“I think most people generally wouldn’t think that it would be a criminal offense to help their loved one who is facing a difficult situation,” Diaz-Tello said. “This (bill) really turns that on its head, and (could have) a devastating impact.”
Though the bill does not directly target people who have abortions, it could serve to isolate them from their support networks, she added. “They’re going to be worried that their loved ones are subject to criminalization, and that drives people away from care.”
Out-of-clinic abortions once raised the specter of dangerous folk remedies and backroom operations. But with the advent of abortion pills, self-managed abortions have become more safe, effective and common — and more necessary, reproductive rights advocates argue, as lawmakers impose increasingly strict limits on in-clinic abortions.
“In states that have a lot of restrictive laws, we’re seeing more people turn to (the abortion telemedicine service) Aid Access, for example, and look for self-managed abortions,” said Abigail Aiken, an associate professor at the University of Texas at Austin and reproductive health researcher. “If we tighten restrictions around abortion further, we can expect to see more of that.”
Alexis, the helpline manager for West Fund, an El-Paso based group that provides financial support for abortions, saw this relationship play out in real time at the start of the pandemic. When Abbott issued an executive order related to health care during the pandemic, it led to a near-total ban on Texas abortions in March and April 2020. Calls to West Fund subsequently skyrocketed, said Alexis, who uses they/them pronouns and asked to withhold their last name due to safety concerns.
With callers needing to travel to clinics out of state, the group spent more than double their monthly budget for abortion funding assistance. They also had to refer callers to other organizations, or tell them a particular clinic had long appointment wait times.
“It was really stressful,” Alexis said. “I’m pretty sure during that time there were a lot more self-managed abortions going on.”
“I really think (lawmakers are) on to the fact that folks are taking matters into their own hands,” they added. “They’re trying to make sure that they’re covering all their bases, which ends up making our work so much harder.”
To date, opponents of SB 4 have largely focused on other provisions that could limit reproductive health access in a state that, with the implementation of Senate Bill 8 on Sept. 1, now holds some of the strictest anti-abortion policies in the nation.
SB 4 would also ban clinics from offering abortion pills past seven weeks, shaving three weeks off the current 10-week timeframe approved by the U.S. Food and Drug Administration. That’s one more week than the legal time limit allowed by SB 8, but still before many learn that they’re pregnant.
Abortion providers and advocates have sued to overturn SB 8. Though the Supreme Court denied their emergency request to temporarily block the measure, the case is still making its way through the courts and could eventually be overturned. But even if SB 8 is struck down, SB 4’s seven-week time limit will be waiting in the wings.
“It’s definitely a complement to SB 8 in a very dangerous way,” said Nancy Cárdenas Peña, a board member of Frontera Fund, which provides financial and logistical support to people seeking abortions.
SB 4 would also prohibit abortion drugs sent within Texas by “courier, delivery, or mail service.”
Texas was already among 19 states that require doctors to be physically present when patients take the medication, preventing abortion clinics to offer abortion care remotely.
But Rep. Stephanie Klick, R-Fort Worth, who sponsored SB 4’s companion bill in the Texas House, said this new measure was necessary because the FDA has authorized the use of abortion pills by telemedicine during the pandemic. Klick told the Texas Tribune that she was concerned the FDA would make the policy permanent.
It is not clear if Lucio or Klick intended to open the door to criminal charges against someone who supplies a friend or family member with an abortion pill. The possibility did not come up at the bill’s committee hearings, and Lucio did not respond to multiple requests for comment on the bill.
The El Paso County District Attorney’s Office did not respond to a request for comment on the bill or whether it would prosecute individuals who violated it.
“My worry is the legal risks, who will they fall on? Well, I imagine they’ll fall on the people who are already most surveilled and discriminated against. I’m thinking about people living in poverty, about people of color, about migrants to the U.S.,” Aiken said.
Cover photo: Misoprostol, a medication to treat ulcers, can be purchased over-the-counter in Mexican pharmacies. In Ciudad Juárez, women often seek the medication that can cost between $18 to $30 to have a self-induced abortion at home. (Veronica Martinez/La Verdad)