Despite abortion bans across the country, total abortion numbers are on the rise. This is a testament to the tenacity of patients and the people working to support them — including abortion funds providing support with money, travel, and childcare, and providers working long hours, traveling, and leaning into innovations in how we provide care. Advocates are working around gerrymandered legislatures to put abortion on the ballot, and policymakers in supportive states are expanding access and taking steps to protect patients and providers.
This is positive news in a dark time. It’s also a rallying point for the extreme forces who are bound and determined to make abortion impossible to access.
I have provided telemedicine abortion care for thousands of patients, both before and after the Supreme Court ended the constitutional right to abortion. Telemedicine medication abortion has played a critical role in increasing access, and now accounts for about one in five abortions in the U.S. I have seen this trend firsthand, with more requests for telemedicine abortion care across the board. In my experience, the highest increases come from states bordering those with abortion bans, particularly Illinois, Colorado, and New Mexico.
Many of the patients I’ve treated are already parents, doing their best to take care of the children they have. Most have chosen telemedicine for the privacy and convenience of this model of care, with every step of the process completed within the comfort and safety of their own home, without the need to take additional time off work or to travel long distances for care.
Not only is medication abortion prescribed via telemedicine just as safe and effective as in-person care — it also has immense impacts in reducing barriers to care. Even in states that protect abortion access, patients face many geographic and financial hurdles to abortion care. This is especially true in rural and underserved communities where the nearest clinic providing abortion care may be hours or hundreds of miles away.
The ability to mail medication abortion pills has offered a lifeline to people who need access to abortion. Unfortunately, it’s also at the heart of an increasingly popular anti-abortion strategy that could go well beyond telemedicine abortion to endanger all abortion access.
Five months after Roe v. Wade was overturned, anti-abortion doctors sued to restrict FDA’s approval of mifepristone in FDA v. the Alliance for Hippocratic Medicine. Their case was founded on the idea that these doctors were individually harmed by allowing access to this medication. Thankfully, the Supreme Court rejected the claim that these doctors had a right to sue, and mifepristone remains accessible for now.
Even though we skated by on a technicality for this case, we must not get complacent.
During oral arguments, Justices Clarence Thomas and Samuel Alito invoked the Comstock Act, an 1873 law that prohibits mailing “obscene” materials, including abortion materials. At the time of its inception, it was part of a crusade by Anthony Comstock against sexual freedom. The application and enforcement of the Comstock Act has changed significantly since its passage, and for the last 50 years, it has not been applied to the mailing of abortion materials — until recently, with anti-abortion advocates pushing to bring this application back from the dead. They argue that the courts or a second Trump administration could invoke it to ban the mailing of any drug or device used for abortion — a stance echoed by Sen. JD Vance (R-Ohio), the newly minted Republican vice-presidential nominee.
The conservative justices bringing it up in oral arguments is a glaring, urgent signal. We clearly can’t count on the courts to save us — Congress must act to get the Comstock Act off the books before it’s too late.
If anti-abortion advocates find a way to block the mailing of any device or drug related to abortion, even those of us in states that protect abortion access would be at the mercy of this draconian law. People could go to the internet to get pills sourced outside the U.S., which is generally safe and effective, but could open them up to targeting by the criminal legal system. Or they might not get the abortion care they need at all, putting them at risk of the well-documented generational consequences of continuing an undesired pregnancy. Given that some anti-abortion advocates push the scientifically bankrupt idea that some forms of contraception cause abortions, those could be targeted as well.
Bringing back a long-dormant application of this law has nothing to do with science. It has nothing to do with safety. This is pure politics, driven by people who were not content to just eliminate a constitutional right we’d relied on for decades. The Biden administration and Congress must recognize the threat posed by the Comstock Act and repeal it now.
No one should have their options for evidence-based medical care limited by politicians or judges who have no medical background and put their own agendas ahead of the health and lives of the people they have promised to serve.
Mai Fleming (she/they), MD, is an assistant clinical professor of Family and Community Medicine and a member of the Bixby Center for Global Reproductive Health at the University of California San Francisco, and a provider with Hey Jane.
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