Conservatives complain abortion bans not enforced, want jail time for pill ‘trafficking’

Six months after their Supreme Court victory, conservatives complain that strict new laws are not being sufficiently enforced

In Smith County, a heavily conservative county in eastern Texas, District Attorney Jacob Putman has said he would be "proud" to enforce the state's near-total abortion ban. (Jeffrey McWhorter)

The largest antiabortion organization in Texas has created a team of advocates assigned to investigate citizens who might be distributing abortion pills illegally.

Students for Life of America, a leading national antiabortion group, is making plans to systematically test the water Erin Brockovich-style in several large U.S. cities, searching for contaminants they say result from medication abortion.

And Republican lawmakers in Texas are preparing to introduce legislation that would require internet providers to block abortion pill websites in the same way they can censor child pornography.

Nearly six months since the Supreme Court overturned Roe v. Wade, triggering abortion bans in more than a dozen states, many antiabortion advocates fear that the growing availability of illegal abortion pills has undercut their landmark victory. Now they are grasping for new ways to crack down on those breaking the law.

Antiabortion advocates had hoped the June decision would significantly decrease the number of abortions in the United States. But abortion rights activists have ramped up efforts to funnel abortion pills — a two-step regimen of mifepristone and misoprostol that is widely regarded as safe — into states with strict new bans, working with rapidly expanding international suppliers as well as U.S.-based distributors to meet demand.

The overturn of Roe v. Wade is bringing more attention to the abortion pill, which has become one of the most accessible methods for abortion. (Video: The Washington Post)

Now many conservatives are complaining that the abortion bans are not being sufficiently enforced, even though much of the illegal activity is happening in plain sight, as abortion rights advocates seek to reach women in need. Leaders interviewed on both sides of the debate had not heard of any examples of people charged for violating abortion bans since Roe fell, a crime punishable by at least several years in prison across much of the South and Midwest.

“Everyone who is trafficking these pills should be in jail for trafficking,” said Marjorie Dannenfelser, the president of Susan B. Anthony Pro-Life America, who has started to speak with Republican governors about the prevalence of illegal abortion pill networks. “It hasn’t happened, but that doesn’t mean it won’t.”

Abortion bans include penalties only for people involved in facilitating illegal abortions, not for the pregnant women themselves.

The push on the right for enforcement reflects the extent to which both sides of the abortion battle are recalibrating after a tumultuous year that has challenged many long-held assumptions about the politics of the issue — and left the state of abortion access in the United States hard to assess. Interviews with more than 30 of the most influential advocacy group leaders, policymakers and litigators on the abortion issue found that far from settling the decades-old abortion question, the fall of Roe has triggered a major new phase of combat set to play out over the next few years in courtrooms, state capitals and the next presidential election.

While a study from the Society of Family Planning found that at least 10,000 fewer clinical abortions took place in the first two months after Roe was overturned, researchers can’t say how many women were able to obtain pills through the mail. One major pill supplier in Mexico estimated that her organization is on track to help terminate 20,000 pregnancies by year’s end, while another Europe-based group says that, after the Supreme Court decision, it received roughly 3,600 queries per month, with about two-thirds of those coming from women in states with abortion bans.

Many Republican lawmakers have been reluctant to further restrict abortion since the June ruling, especially after this year’s midterm elections confirmed that abortion rights are popular with voters across party lines. Backlash from the court decision was widely credited with helping Democrats score some critical wins, including a state legislative majority in Michigan and control of the Pennsylvania House, while voters even in heavily Republican states turned out in droves to oppose antiabortion ballot measures.

How abortion access fared in the midterm elections in nine states

Abortion rights advocates say they are exploring 2024 ballot measures in at least a dozen states to enshrine abortion rights in their state constitutions. Momentum is building in many states with strict abortion bans, including Oklahoma, Missouri, Arkansas, Ohio and South Dakota, according to several national abortion rights advocates with knowledge of early conversations across the country.

“Democrats should not be shy about being bold and using every tool to fight for individual rights,” said Michigan Gov. Gretchen Whitmer (D), who won easy reelection in a state that also voted to protect abortion rights through a ballot measure. States that have the ability to do a Michigan-style ballot initiative “should certainly be exploring it,” Whitmer said.

While abortion rights advocates appear largely united in their approach, the rise of abortion pills and the election results have combined to highlight tensions among conservatives over what to do next.

The next few months could pit the “true believers” — those who genuinely care about limiting the number of abortions — against those who back antiabortion policies to score political points, said Jonathan Mitchell, the antiabortion lawyer behind the novel Texas abortion ban that took effect in 2021.

Mitchell said he has been involved in discussions about aggressive and unconventional measures that he thinks are necessary if Republicans are determined to actually limit the number of abortions. But he is unsure whether Republicans will have the political will to pursue those ideas.

“Especially after this election, a lot of Republicans will want to change the subject, and going after abortion pills is not the way to change the subject,” he said.

Antiabortion advocates search for an ‘airtight’ case

After the Supreme Court overturned Roe, Texas antiabortion advocates stepped up efforts to find local prosecutors most inclined to enforce antiabortion laws.

They quickly zeroed in on Jacob Putman, the prosecutor in Tyler, Tex., a small city that bisects 200 miles of mostly open road between Dallas and Shreveport, La. Larger than a lot of other heavily conservative counties in Texas, several Texas antiabortion advocates said, Putman’s district has the resources to investigate and prosecute those who violate the state’s near-total abortion ban.

Putman is also staunchly opposed to abortion.

Since the June ruling, the prosecutor has made several public statements expressing his commitment to enforcing the state’s abortion ban. Growing up in Smith County, he told The Washington Post, he volunteered at his local crisis pregnancy center, a religiously affiliated organization that aims to dissuade women from having abortions. He and his wife have donated money to the group. As the county prosecutor, he said, he would be “proud” to bring a case against someone caught violating the abortion ban, a felony punishable in Texas by up to life in prison.

But Putman hasn’t had any of those cases. And he doesn’t expect to have one anytime soon, in part, he said, because it’s difficult to determine who is breaking the law and where the crimes are being committed.

“If it’s happening in my county, I’m not aware of it,” said Putman, sitting beneath a mounted pair of horns from a Texas Longhorn. “In order for one of these cases to get to a prosecutor’s office, someone is going to have to tell, and I don’t know who that would be.”

Texas Right to Life, the state’s largest antiabortion group, is positioning itself to help. A designated team within the organization has been searching for an “airtight” case to bring to a district attorney like Putman who is willing to prosecute, said John Seago, the group’s president.

“We’re not going to get involved until we have evidence, something credible we can take,” Seago said. “We’re trying to actually confirm who’s involved in these networks, how it’s being done.”

While there hasn’t been much evidence of enforcement since Roe fell, there is a long history in the United States of prosecuting people for pregnancy-related crimes. Between 2000 and 2020, 61 people were criminally investigated or arrested for either ending their own pregnancy or helping someone else end theirs, according to a preliminary report from If/When/How, a legal advocacy group that supports abortion rights.

Abortion rights advocates say new efforts to prosecute will exacerbate the fear and isolation of those facing unwanted pregnancies in states where abortion is banned.

“It will paralyze people from getting help and health care when they need it and are entitled to it,” said Aimee Arrambide, executive director at Avow Texas, an abortion rights advocacy group.

Seago said he hopes the upcoming legislative session in Texas — which has established itself as a testing ground for new and aggressive antiabortion legislation — will yield tools that will help antiabortion advocates in their fight against illegal abortion pills.

Texas lawmakers are drafting legislation that would compel internet providers to block people from accessing abortion pill websites like Europe-based Aid Access and other online pharmacies within state borders, said Seago, though even antiabortion lawyers say that effort would raise free speech concerns. Another proposal would refashion the enforcement mechanism behind the six-week abortion ban that took effect in Texas in 2021, empowering private citizens to enforce the law through civil litigation at any stage of pregnancy, not just after six weeks.

National advocacy groups are also pivoting to focus on enforcement. Early in the new year, Dannenfelser of Susan B. Anthony Pro-Life America said she plans to strategize with antiabortion governors about how best to deal with the illegal pill networks.

She said she has already discussed the matter with Georgia Gov. Brian Kemp, one of several GOP governors to sign a strict abortion ban and win reelection this year. According to Dannenfelser, Kemp is widely supportive and “already engaged” on the abortion pill issue.

“Every governor, especially governors who have passed ambitious laws, have it in their interest to make sure that laws in their states aren’t de facto overturned by pills going into every part of their state, through organizations that are directly violating the law,” Dannenfelser said.

Andrew Isenhour, Kemp’s deputy director of communications, declined to comment on any potential legislation, adding that the governor remains “committed to supporting life at all stages and protecting the lives of the unborn.”

Some are exploring other unorthodox approaches.

Antiabortion advocates filed a lawsuit against the U.S. Food and Drug Administration in November challenging its decades-old approval of one of the pills used in medication abortions. Their arguments have been widely discredited by legal experts.

Students for Life of America is focused on the environmental harm it says is caused by medication abortions, specifically from fetal remains flushed down the toilet, as often happens when women take abortion pills at home. (There is no direct evidence that abortion pills contaminate the water supply, and environmental experts have dismissed the arguments made by Students for Life.)

At an internal meeting in Indianapolis on Nov. 30 attended virtually by The Post, employees expressed frustration that state officials are not already testing the water for contaminants related to abortion pills.

“You mentioned Erin Brockovich,” said Students for Life of America President Kristan Hawkins, speaking to another member of her advocacy team and referencing the famous legal clerk who exposed groundwater contamination around a major gas and electric facility. “Let’s just get the damn water samples ourselves since we already know they’re not doing it.”

By the end of the meeting, the group had developed several action items, including finding a lab willing to help with testing, and recruiting a team of “student investigators.” Hawkins said she will be meeting with Republican attorneys general in the new year to discuss issuing statewide injunctions against abortion pills, based on the group’s claims about toxic wastewater.

Since abortion restrictions were implemented in Texas, this organization has seen an uptick of homeless women with unplanned pregnancies looking for shelter. (Video: Whitney Shefte/The Washington Post)

Looking toward 2024

Abortion rights advocates are newly energized coming out of the midterms, eager to capitalize on public opinion and build on the gains they made in Michigan, Kentucky and beyond after the Dobbs v. Jackson Women’s Health Organization decision invalidated Roe.

“From the day that the Dobbs opinion was leaked, until right now, a new fury has burned through the women of this country,” said Sen. Elizabeth Warren (D-Mass.), an outspoken proponent of abortion rights, who says she is committed to helping more states pass abortion protections.

As abortion proponents turn their attention to 2024, ballot initiatives that aim to protect abortion in state constitutions are now the “strategy du jour,” said Jessica Arons, senior policy counsel for the American Civil Liberties Union.

But ballot measures should not be seen as a cure-all, several abortion rights advocates warned. Because of their high price tag — abortion rights advocates spent tens of millions of dollars on the one in Michigan — these campaigns can’t happen everywhere simultaneously, said Rachel Sweet, who worked closely with the ACLU and ran the abortion rights campaigns this year in Kansas and Kentucky.

In several states that allow citizens to add issues to the ballot by collecting signatures, conservative lawmakers are already discussing various proposals to make it harder to put issues directly to voters. Soon after the midterms, Ohio Secretary of State Frank LaRose introduced an effort to require 60 percent of voters to pass certain constitutional amendments, instead of the current system, which requires a simple majority. LaRose dismissed claims that his proposal was related to the abortion issue, according to the Columbus Dispatch.

As they push for more restrictive bans in states such as Florida and North Carolina, antiabortion advocates across the country will have to contend with moderate Republicans who have been increasingly vocal on the issue. In Indiana, West Virginia and South Carolina — three states that have convened for legislative sessions since Roe fell — Republicans struggled to agree on a path forward on abortion, as moderate factions within the caucus pressed for less severe restrictions.

West Virginia Senate Majority Leader Tom Takubo (R), a practicing physician, brought debate on the issue to a standstill in July, refusing to back a bill that included criminal penalties for doctors. In private conversations with other Republican leaders, he said, he warned of a massive public backlash.

“If Republicans aren’t willing to come and meet a little bit more towards the middle, then what they’re actually doing is going to hurt their cause and cause a major swing in the opposite direction,” said Takubo, who ultimately voted for a near-total abortion ban.

Both sides of the debate are now gearing up for the 2024 presidential election, which will be critical for the future of abortion access. While President Biden has been limited in his ability to protect abortion access, an antiabortion president could significantly alter the current landscape, cracking down on abortion pills in both Democratic- and Republican-led states.

Under a Republican president, the FDA could alter the restrictions around abortion pills. For example, the agency could try to limit the period of time when patients can legally take abortion pills, from 10 weeks of pregnancy to six or seven, said Greer Donley, a professor at the University of Pittsburgh School of Law who specializes in abortion — a move that would force tens of thousands of people every year to have surgical, rather than medication, abortions.

National antiabortion advocates are also carefully considering the ways in which a president could restrict illegal pill networks. An antiabortion president could direct several agencies to bear down on the issue, including the U.S. Postal Service, as many pills are sent through the mail, and the Department of Justice, said Stephen Billy, vice president of state affairs at Susan B. Anthony Pro-Life America.

When Dannenfelser meets with Republicans who may run for president in 2024, she said she asks them first about a national abortion ban, preferring candidates who advocate for a ban after six, 13 or 15 weeks of pregnancy.

Her next question is about the “cataclysmic problem of the abortion pill.”

“We don’t have to dictate their solution,” Dannenfelser said. “But they have to have one.”

clarification

This story has been updated to reflect that Rachel Sweet worked with the ACLU on the abortion rights campaigns in Kansas and Kentucky.

Roe v. Wade and abortion access in America

Roe v. Wade overturned: The Supreme Court has struck down Roe v. Wade, which for nearly 50 years has protected the right to abortion. Read the full decision here.

What happens next?: The legality of abortion will be left to individual states. That likely will mean 52 percent of women of childbearing age would face new abortion limits. Thirteen states with “trigger bans” will ban abortion within 30 days. Several other states where recent antiabortion legislation has been blocked by the courts are expected to act next.

State legislation: As Republican-led states move to restrict abortion, The Post is tracking legislation across the country on 15-week bans, Texas-style bans, trigger laws and abortion pill bans, as well as Democratic-dominated states that are moving to protect abortion rights enshrined in Roe v. Wade.

How our readers feel: In the hours that followed the ruling in Dobbs v. Jackson Women’s Health Organization, Washington Post readers responded in droves to a callout asking how they felt — and why.

Loading...
Loading...