“We want to help you, but we can’t know that you’re doing mail forwarding,” said one telehealth clinician. Another summed it up concisely: “Don’t ask, don’t tell.”
Women living in states restricting or banning abortion are finding creative ways to access abortion pills. Tens of thousands have ordered abortion pills from websites that sell pills and healthcare clinicians located outside of the country. But multiple-week delays for international shipping has led many to seek pills from inside the country, which can be obtained much more quickly.
Some are ordering pills from community-based organizations such as Red State Access and Las Libres, which mail free abortion pills quickly to people living in states with abortion bans. (The Plan C Guide to Pills indicates which states each group serves.) These services do not provide medical supervision, although people can reach experienced volunteer clinicians for medical questions through the M+A Hotline.
But for those who want to receive prompt care directly from U.S.-based clinicians, many are turning to telemedicine abortion providers in states that allow it and using mail forwarding, as detailed on the websites of advocacy groups such as Plan C and Mayday Health.
U.S.-based telemedicine abortion clinicians offer consultations by videoconference, telephone or online forms (asynchronously) and then mail abortion pills to patients to states where they are licensed and abortion is legal. Some clinicians ask patients to check a box on an online form confirming they are physically located in a state they serve, but do not confirm the patient’s physical location during the consultation. Others do not ask for or confirm the patient’s location; they just require a mailing address in a state where they are licensed and abortion is legal.
Patients living in states restricting abortion access are having pills sent to friends or family members in states where clinicians are licensed, then asking their friends and family to forward the pills to them. Alternatively, they obtain an address from a mail forwarding service in a state where the clinician is licensed and then have the pills forwarded to them in their home states. But if patients reveal to clinicians that they are located in a state banning abortion or that they are using mail forwarding, telemedicine clinicians may not serve them.
Ms. spoke to telehealth abortion clinicians across several states to ask them what they wish their patients knew about mail forwarding. People interviewed asked for anonymity out of concern for their safety and privacy.
“If patients are doing mail forwarding, or if they’re having a friend get the package, it’s not really something that we can know about as clinicians, because we really can only be prescribing to the states where we’re licensed,” said one telehealth clinician.
“For example, if a clinician serves California, the patient should be in California and receiving mail in California. Now, if it’s someone who lives in Texas, and they’ve set up mail forwarding in California, or a friend is going to take that package in California and then mail it on to them, they could say something like, ‘I’m traveling to California to pick up this package.’ That’s fine, as long as it’s not blatantly obvious that they won’t be in the state where they are receiving it.”
If a patient tells their clinician they are located in a different state during the consultation or that they are using mail forwarding, telehealth clinicians may not feel they can serve them.
“We want to help you, but we can’t know that you’re doing mail forwarding,” said one telehealth clinician. Another clinician summed it up concisely: “Don’t ask, don’t tell.”
One telemedicine abortion clinician, Abortion on Demand, requires a videoconference consultation and checks patients’ IP addresses to ensure they are physically located in a state where the clinician is licensed to practice. Most clinicians, however, don’t do that.
“We shouldn’t know if patients are doing mail forwarding, because it tells us that they’re not in the state where they say they are and where we are licensed,” said another clinician.
If a provider is comfortable with absorbing some legal risk, any patients they see are not going to face legal risk for using those services.
Rebecca Wang, If/When/How
Last July, Massachusetts passed a provider shield law that protects telemedicine abortion clinicians sending pills directly to people who are physically located in states with abortion bans. At least one Massachusetts clinician is now offering telemedicine abortion services to people in states with restrictive abortion laws. Lawmakers in other states are currently considering similar legislation, including in New York, Vermont, Maryland, New Jersey and Washington state. While these provider protections are not foolproof, they reduce potential negative legal repercussions of offering telemedicine abortion care to people living in states with abortion restrictions.
While some telehealth clinicians are careful to stay within the most conservative interpretation of the law, others are less worried about trying to insulate themselves from any potential legal repercussions, especially when women are desperate for medical care in the face of unjust restriction on abortion access.
“There’s too much time spent worrying about the ‘what ifs?’ instead of ‘what now?’” said one telehealth abortion clinician. “It comes down to risk tolerance. We all have different risk tolerances. The way I look at risk is, ‘What’s the worst thing that can happen if I get caught, and how likely is it?’ Those two things make me do things that a lot of people would be too nervous to do.”
Clinicians may serve their established patients by telemedicine when the patients are traveling in states where the clinician is not licensed, but generally clinicians may only serve patients located in states where they are licensed. Some advocates argue that law of the state where the telehealth provider is located should control rather than the law of the state where the patient is located. But in the absence of clear law on that point, telehealth clinicians who knowingly serve patients located in states where they are not licensed risk losing their medical licenses.
We all have different risk tolerances. The way I look at risk is, ‘What’s the worst thing that can happen if I get caught, and how likely is it?’ Those two things make me do things that a lot of people would be too nervous to do.
While telehealth care and mail forwarding has worked for many people, several providers and Plan C report that some mail forwarding services have recently refused to forward abortion pills.
“They open it because they say it’s a suspicious package. I think they know exactly what the packages look like, even though they’re just a FedEx package. Then they send an email to the patient and say, per our policy, we can’t forward this to you. They say you can come pick it up in person if you want, but I don’t recommend that anyone go in person to do that. These refusals to forward have been very few, but it’s still something people should know about.”
Another clinician said she believes it’s “still relatively uncommon” that mail forwarding services are opening people’s packages, but wants patients to know about this possibility.
“If we talk to them on the phone, we subtly tell people to use a friend rather than one of the mail forwarding places,” said the clinician.
On the legal risks of forwarding abortion pills for a friend, one clinician noted, “I’m not aware of a single case of someone being caught for forwarding abortion pills for someone else. We need to lower everyone’s fear levels because fear makes things seem abnormal, and they’re not.”
For patients, self-managed abortion is not against the law in most states. Only South Carolina and Nevada explicitly prohibit self-managed abortion.
However, reproductive justice advocates worry about increasing criminalization post-Dobbs and increasing surveillance by anti-abortion police and prosecutors, especially for communities of color who are already over-surveilled. A 2022 study conducted by If/When/How: Lawyering for Reproductive Justice found that between 2000 and 2020, 61 people have been investigated and/or prosecuted for self-managed abortion. Of those 61, just over half used abortion pills. There are no known cases of people investigated or arrested for using abortion pills early in pregnancy.
New York telehealth abortion clinician Linda Prine expressed skepticism about claims that ordering abortion pills by mail is legally risky, noting that the number of people ordering abortion pills online has “gone through the roof since Roe fell,” yet she has heard of no one who has been arrested for getting pills in the mail and using them in early pregnancy.
In Texas, where a bounty hunter law authorizes people to sue anyone who helps a woman obtain an abortion, an ex-husband recently sued three Texas women for wrongful death because they helped a woman obtain abortion pills to end her pregnancy. And Republicans have introduced bills in several states, including Oklahoma, to criminalize the use or distribution of medications for abortion. Currently only South Carolina and Nevada explicitly criminalize self-managed abortion.
Legal support counsel Rebecca Wang at If/When/How says at this point the legal risks for people ordering or forwarding pills are minimal, but vary depending on the particular laws of the states where people are located, whether people are talking to others about the activities they’re engaging in and personal identity factors because people of color tend to be more heavily surveilled by law enforcement.
“If people are receiving medications from a valid telemedicine service and a licensed provider within the United States, the likelihood that they’re going to face legal risk for receiving those services or those pills is very, very low,” said Wang. “If a provider is comfortable with absorbing some legal risk, any patients they see are not going to face legal risk for using those services.”
Free and confidential legal advice relating to abortion is available for provides at the Abortion Defense Network and for patients at Repro Legal Helpline.
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