A Texas law that criminalizes distributing abortion pills is now in effect
One day after the U.S. Supreme Court heard oral arguments in a case that could put an end to Roe v. Wade, and three months after Texas’ six-week abortion ban became law, another anti-abortion measure that has largely flown under the radar in Texas has now taken effect.
Senate Bill 4 makes it a crime to give people abortion-inducing medications in Texas — a development that could have heightened implications for El Paso, which does not have an abortion provider, but has cheap, easy access to abortion medication in both Mexico and New Mexico.
Texas Gov. Greg Abbott signed SB 4 into law in mid-September, roughly two weeks after the state’s six-week abortion ban, Senate Bill 8, took effect. The ban has cut the number of Texas in-clinic abortions by half, according to research from the Texas Policy Evaluation Project at the University of Texas at Austin.
But that doesn’t necessarily mean Texans are choosing to continue their pregnancies. Out-of-state abortion providers have reported a rise in the number of Texans seeking abortions at their clinics.
And, if trends from previous studies bear out, it’s likely the new restrictions have also caused more people to turn to out-of-state or even out-of-country telemedicine services, or to self-manage their abortions without clinician guidance.
In April 2020, for example, Texas effectively banned abortions for one month, leading to a surge in Texans’ requests to the telemedicine abortion service Aid Access — a 94% rise from the previous year, according to a study by UT-Austin researchers.
SB 4 is a “pretty explicit” response to the likely rise in self-managed abortions following SB 8’s heightened legal restrictions, said Rafa Kidvai, director of the legal defense fund at If/When/How, a national reproductive justice organization.
Both telemedicine abortions and self-managed abortions are a form of medication abortion that typically rely on misoprostol, a pill that can be taken alone or in combination with the drug mifepristone to end pregnancies. According to the World Health Organization and the U.S. Food and Drug Administration, these medications can be used safely and effectively to induce abortions.
But under SB 4, “any act of giving, selling, dispensing, administering, transferring possession, or otherwise providing or prescribing an abortion-inducing drug” in Texas is now punishable with a state jail felony, which carries a fine of up to $10,000 and between six months and two years of imprisonment.
SB 4 also criminalizes sending abortion medication within Texas by “courier, delivery, or mail service.” Texas was already among 19 states where doctors must be physically present when patients receive the medication, preventing abortion providers from mailing medications or otherwise offering telemedicine services. But with SB 4, any violation of these provisions could now mean jail time.
Democratic state Sen. Eddie Lucio Jr. of Brownsville, who authored SB 4, said in committee hearings that the bill was meant to improve safety for Texas women. “As all of you well know, I am a pro-life legislator who believes in the sanctity of life,” Lucio said. “(This) bill attempts to make sure there’s not two deaths, instead of one.”
Sen. Lucio did not respond to an interview request.
SB 4 makes clear that people who use abortion medications cannot themselves be charged with a crime. But the new law nevertheless creates an indirect form of punishment for those who end their own pregnancies, said Kidvai, who uses they/them pronouns.
“Someone who is self-managing their abortion is not the official target, but I just feel like that’s a farce,” they added.
The law is both “savvy” and “terrifying,” Kidvai said, because it heightens the “culture of criminalization and surveillance around abortion.”
It could also be used to force people who’ve used abortion medications to participate in punishing the very people who helped them, Kidvai noted. Law enforcement could interrogate someone about the person who gave them abortion medication, they said; use their health information as evidence; or even call that person to testify against the friend or family member who gave them the medication.
To protect others from prosecution, someone seeking abortion medication could end up feeling isolated and alone. “The number one source of safety is our communities, and SB 4 creates this chasm between people and their communities,” Kidvai said.
This could be especially true in Texas border communities like El Paso, where a 2012 survey found that people self-manage abortions at higher rates than other parts of the state and country. El Paso, moreover, has not had an abortion clinic since the pandemic began in March 2020, when the city lost its two abortion providers in the course of one month, making it one of the largest cities in the country without a provider. El Paso’s Planned Parenthood stopped providing abortions due to COVID safety concerns, though it continues to provide other services. The Hill Top Women’s Reproductive Clinic closed without explanation, but has continued to operate its New Mexico clinic under a different name.
But the city’s position alongside Mexico and New Mexico offer unique access points to abortion medication in particular. Mexican pharmacies in Ciudad Juárez offer the abortion medication misoprostol, which can also be used to treat stomach ulcers, for as low as $20.
In New Mexico, advocacy organizations and abortion providers are also working to shore up access to abortion medication. New Mexico’s abortion-friendly laws make it a “model” for other states, said Andrea Ferrigno, corporate vice president of Whole Woman’s Health, a private abortion provider that is involved in a lawsuit challenging SB 8.
A month after SB 8 went into effect in Texas, Whole Woman’s Health expanded its telemedicine services to New Mexico. Its licensed in-state providers ask patients to sign certifications that they are in New Mexico and then mail an abortion medication regimen to a New Mexico address provided by the patient.
Elisa Wells, the co-founder and co-director of Plan C, an advocacy organization that provides resources to improve access to abortion pills, noted that Texans could also pick up abortion medication out of state through “general delivery” options at a post office just across state lines — which in El Paso can be a 20-minute drive into New Mexico.
Other groups, such as Just the Pill, are considering opening up mobile clinics that would operate along the Texas-New Mexico border, providing ultrasounds, medication and even surgical abortions, which can take place later on in pregnancies than what’s possible with pills.
SB 4 also bans physicians from providing abortion pills past seven weeks — three weeks less than the 10-week timeframe approved by the FDA. That’s one to two more weeks than the limits set by SB 8, but still before many may suspect they’re pregnant. A typical menstrual cycle can last between three to five weeks, and many factors — such as stress, diet, birth control and medical conditions — can cause varying or skipped periods.
Cover photo: Protestors with the advocacy group Shout Your Abortion ingested abortion pills outside the Supreme Court on Wednesday as justices heard arguments in Dobbs v. Jackson Women’s Health Organization, a case that could overturn Roe v. Wade. (Photo courtesy of Farrah Skeiky)