How an FDA ruling does — and doesn't — affect El Pasoans' legal abortion options – El Paso Matters

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In mid-December, the U.S. Food and Drug Administration permanently lifted its requirement that patients take abortion-inducing drugs in the presence of a health care professional, clearing the way for patients to receive the medications by mail. The federal agency’s decision came two weeks after Texas’ Senate Bill 4 made it a state jail felony to mail abortion medications — putting state policy at odds with national policy.
For much of the country, the FDA’s Dec. 16 decision toppled a major access barrier to medication abortions. A medication abortion is a non-surgical procedure that uses pills to induce abortions; according to the state Department of Health and Human Services, it is also the most common way that Texans end their pregnancies.
Those access barriers will remain in place for Texas. The state has long prohibited telehealth abortions. To this existing restriction, SB 4 added six-month minimum jail sentences and fines of up to $10,000 for non-physicians who “knowingly provide” medication “for the purpose of inducing an abortion in the pregnant woman or enabling another person to induce an abortion in the pregnant woman.”
SB 4 imposes the same penalties for doctors who administer the pills past seven weeks of pregnancy.
Provide, under SB 4, means “any act of giving, selling, dispensing, administering, transferring possession, or other providing or prescribing an abortion-inducing drug,” including those sent via mail.
“This year, the Biden administration has targeted existing safety protocols meant to protect pregnant women,” Renae Eze, press secretary for Texas Gov. Greg Abbott, wrote in an emailed response to questions about the FDA decision. “We will not allow this to happen in Texas. Having added this issue to the first and second special session agendas, Governor Abbott signed SB 4 into law banning mail-in abortion-inducing drugs in Texas.”
Mifepristone and misoprostol were approved for use by the FDA in 2000. The medications are safe and effective, according to the FDA and the World Health Organization
The FDA’s decision has little practical effect for Texans. But it does permanently enable telemedicine services in states whose laws permit it, like New Mexico, where a number of abortion providers have already begun to ramp up their telemedicine capacity.
The FDA’s decision capped off one of the most tumultuous years for abortion rights in the last half-century. Since Sept. 1, a slew of new state laws, federal policies and Supreme Court cases have clashed over the fate of abortion access, especially in Texas.
The policies can be contradictory, redundant and vague — at times leaving even experts unsure of their legal implications.
Texas’ controversial Senate Bill 8 bars most abortions after about six weeks of pregnancy, for instance, while SB 4 imposes jail time for doctors who provide abortion medication after seven weeks. Both laws come as the Supreme Court weighs whether to overturn Roe v. Wade and Planned Parenthood v. Casey, two landmark rulings that for nearly 50 years have upheld abortion as a fundamental, constitutional right.
In this rapidly shifting landscape, it can be difficult for Texans seeking abortions to understand their legal options, as well as the legal risks involved if they are past the state’s six-week limit. This may be especially true for residents of El Paso, a city that sits at the juncture of both state and international borders, where laws governing abortion access have changed rapidly.
As of the end of 2021, here are the options available to El Pasoans seeking abortions.
First, El Pasoans “should know that abortion is still legal” within Texas, said Farah Diaz-Tello, legal director of If/When/How, a reproductive justice nonprofit whose repro legal helpline provides legal information and advice to people considering a self-managed abortion, which is an abortion that occurs without medical guidance.
SB 8 holds that Texas providers may offer abortions until cardiac activity can be detected within an embryo — usually at about six weeks of gestation or about one to two weeks after a missed period. “If they’re within the legal timeframe,” Diaz-Tello said, “they can still obtain an abortion.”
Underscoring that point, El Paso Planned Parenthood announced on Dec. 21 that it had resumed offering abortions after a nearly two-year hiatus. In compliance with SB 8, the clinic will provide the abortion pills mifepristone and misoprostol up to five weeks and six days after the start of a patient’s last menstrual period.
El Pasoans past this time limit who want an abortion have three main options available to them: they might travel to a neighboring state like New Mexico to receive telehealth or in-clinic care; purchase misoprostol in Mexico, where the medication is sold over the counter to treat ulcers; or turn to the telemedicine service Aid Access, where a European doctor outside the reach of Texas law continues to offer online consultations and prescriptions for Texans, working with an international pharmacy to send abortion medication directly to Texas addresses. 
When evaluating their options, Diaz-Tello recommends that people reflect on their ability to tolerate legal risk.
Since 2000, at least 24 people in the United States have been prosecuted for attempting to end their own pregnancies, according to Plan C, an organization that advocates for expanded access to abortion medication. Some groups, such as people of color, low-wage earners or those without legal status in the United States, Diaz-Tello noted, may also be more vulnerable to prosecution. 
New Mexico has some of the least restrictive abortion laws in the country. It imposes no time limits on when someone can get an abortion. Since SB 8 went into effect in Texas, hundreds of Texans have traveled to New Mexico for abortions. El Paso is no exception.
Full Circle Health Clinic in Las Cruces provides medication abortions in person and by telemedicine between four to 11 weeks gestation, according to the website ineedana.com. “For undocumented people traveling to this clinic: There is not an immigration checkpoint between El Paso and this clinic,” the website notes, and includes a map of known permanent Border Patrol checkpoints.
Women’s Reproductive Clinic in Sunland Park offers medication abortions up to nine weeks gestation. There is no checkpoint between it and El Paso.
West Fund, an El Paso-based reproductive justice organization that provides financial assistance to people seeking abortions, does not refer clients to the Sunland Park clinic, according to its president, Rachel. (All West Fund staff provide only first names to media, citing legal and safety risks.)
“They have demonstrated unsafe practices that have put people in our community at risk while seeking abortion care. They also do not take any of our funding, refusing to relieve the financial burdens associated with abortion care,” Rachel said in a written statement.
Women’s Reproductive Clinic has not responded to requests for comment.
Some El Pasoans may want or need to access surgical abortions — whether because they prefer this procedure, are past the point of pregnancy where medication abortion is considered safe and effective, or have medical issues that may prevent the use of abortion-inducing drugs. The closest clinics to El Paso offering surgical abortions are in Albuquerque, according to ineedana.com. The route between Albuquerque and El Paso includes Border Patrol checkpoints.
El Paso residents can receive New Mexico telemedicine services if they are in New Mexico during their consultation and at the time providers issue a prescription, Diaz-Tello said. El Pasoans, she added, “could get a telemedicine consultation in New Mexico, get the pills mailed to them there, and then bring them with them into Texas. That should be legal because it would be essentially the same thing as going to New Mexico for an abortion.”
Texans could also pick up abortion medication out of state through “general delivery” options at post offices just across state lines, said Elisa Wells, the co-founder and co-director of Plan C, the advocacy group promoting expanded access to abortion pills.
New Mexico-based providers could be placed at legal risk under Texas’ new laws if they were to knowingly send prescriptions for patients who are within Texas state lines, Diaz-Tello said, even if that patient were to then travel to New Mexico to pick up the prescription.
Whole Woman’s Health, a private abortion provider that began offering telemedicine in New Mexico a month after SB 8 took effect in Texas, asks patients to sign certifications that they are in New Mexico and mail medication to a New Mexico address provided by the patient, said Andrea Ferrigno, the group’s corporate vice president. 
Non-providers — such as friends or family members — also need to take precautions, Diaz-Tello said. 
“You could not have situations in which, say, you live in El Paso and your friend lives across the border in New Mexico and gets some medications for you and … brings them to you or something like that. That exact person (the friend) would be targeted by SB 4.”
Texas’s new laws make clear that the person who has an abortion cannot be punished for violating their provisions. These restrictions imposed by SB 4 and SB 8 “make accessing care harder” for abortion patients, said Adriana Piñon, a senior staff attorney and policy counsel for the ACLU of Texas. But “all of the lawsuits, all of the criminal penalties, all of those punishments — those are aimed at people other than the person who needs the abortion.”
The main targets of Texas’ anti-abortion laws tend to be providers. Under SB 4, both Texas and U.S.-based doctors and pharmacies would run legal risks if they were to send abortion medication to Texas addresses, according to Richard Hearn, an Idaho-based criminal law attorney and rheumatologist who has represented people prosecuted for violations of abortion laws in other states. 
But, he noted, Texas law does not cross international lines. 
Hearn represents Aid Access, a group that offers telehealth abortion services to U.S. patients. In states that allow telehealth abortions, U.S. providers oversee consultation requests. But for the 19 states including Texas that bar telemedicine abortion, the group’s founder, Rebecca Gomperts, takes over.
The Dutch physician splits her time between Austria and The Netherlands, overseeing all consultations from Texas residents up to 10 weeks gestation, in compliance with European regulations. She issues prescriptions for generic versions of mifepristone and misoprostol to a mail-order pharmacy in India, which then ships the pills directly to Texas addresses.
“It would be impossible for Aid Access to be prosecuted by the state of Texas,” Hearn said. “They are going to be safe.”
When asked if pregnant Texans would risk legal punishment for receiving abortion pills at their Texas addresses, he said “there’s no practical risk to the woman from federal authorities.” (Diaz-Tello stressed: Anyone ordering or receiving the abortion medication on behalf of the person ending their pregnancy could be charged with a felony under SB 4.)
Hearn noted that “prescription medicines coming through the mail (are) technically not approved. But the person who receives them will be under federal law treated the same way as the person who gets their insulin cheaper from a Canadian online pharmacy. There’s just nothing happening to people who are getting prescription drugs online.” 
And while federal law enforcement agencies regularly screen packages for illicit substances such as heroin and fentanyl, he said, those agencies “have bigger fish to fry, especially under the Biden administration, than to go after women who are (ordering abortion pills) online.”
On its website, the FDA recommends against purchasing mifepristone and other medications internationally because the agency cannot ensure the drugs’ safety or authenticity. Plan C periodically conducts “mystery shopper” orders of abortion pills from overseas manufacturers, and works with labs to test the medication contents, Wells, the group’s co-director, said.
However, it’s not clear if Texas law could penalize purchasing medications from foreign suppliers, said Diaz-Tello and Timothy Tucker, executive director of the Texas State Board of Pharmacy.
“That’s a big question. People can get medication from lots of different sources — Canada, Mexico, other states mail-order all kinds of stuff. It would be hard to give you a real clear answer on how they’re regulated,” Tucker said.
The TSBP regulates only in-state pharmacies, Tucker noted. He could point to no state law or agency that governs Texans’ purchase of out-of-state or international medications.
For pregnant Texans who choose to order abortion medication online without leaving the state, the main drawback could be time. 
Aid Access prescriptions through the Indian pharmacy can take two to three weeks to arrive in Texas, said Christie Pitney, a certified nurse midwife and Aid Access provider who oversees consultations from patients in Oregon, California and Massachusetts. 
El Pasoans who travel into New Mexico for their consultations would receive the medication sooner, Pitney said. Aid Access also provides telehealth services in New Mexico, where state law allows providers to mail medication from within the United States, shrinking the arrival timeframe to a matter of days.
This fall, Aid Access began supplying abortion medication to people who are not pregnant through “advance provision,” Pitney said, allowing people to keep the pills on hand in case they’re needed. Misoprostol has a shelf life of three years, while mifepristone expires after 18 months, she said.
El Paso and other border communities also have a long history of traveling to Mexico for help ending their pregnancies. 
In Ciudad Juárez, pharmacies sell misoprostol over the counter for as low as $20 because the medication is also used to treat ulcers. 
Misoprostol can be used alone or in combination with mifepristone to end a pregnancy, according to the World Health Organization. 
The city’s pharmacists have been known to question women in particular about how they intend to use the medication, which is often sold under the brand name Cyrux; some pharmacies may also require a doctor’s prescription. 
The trip into Mexico means a return through a U.S. port of entry, past an inspections officer. “​​(A)nyone entering the U.S. from abroad must declare all items they acquired, including medications,” Roger Maier, a spokesperson for U.S. Customs and Border Protection, wrote in an email. “Failure to do so can result in penalties.” 
CBP officers at El Paso ports of entry have had “no records of any encounters with this product,” he added, referring to misoprostol.
Cover photo illustration by Robin Marty
Victoria Rossi is a gender reporter with El Paso Matters and a Report for America corps member. She has worked as a health and education journalist, an immigration paralegal, and a criminal justice researcher. She can be reached at vrossi@elpasomatters.org.

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by Victoria Rossi, El Paso Matters
December 28, 2021
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