The facts as alleged could hardly be worse for advocates of interstate abortion by mail. On Friday, January 31, pursuant to a grand jury finding, officials in Baton Rouge issued warrants for the arrest of a Louisiana woman and the New York State-based physician who mailed her abortion pills in contravention of Louisiana state law. The indictment alleges that the woman who ordered and received the pills gave them to her teenage daughter who took them under the mother’s threat to expel her from the family home if she did not submit to the abortion. The case came to light when the teenage girl experienced complications from the pills and needed emergency transport to the hospital.

Adding another layer to the tragedy, the teenage girl reportedly wanted to keep the baby and had plans for a “gender reveal” party. She is not subject to any penalty under Louisiana law, which bars both the mailing of abortion pills into the state as well as any act to coerce a woman to undergo an abortion.

Louisiana’s action swiftly resulted in a stern response from New York Governor Kathy Hochul (D). The second-term Democrat immediately released a statement vowing to protect the New York abortionist from extradition to Louisiana, stating, “Earlier today, a New York doctor was indicted in Louisiana for using telemedicine to prescribe abortion medication to a patient. That’s right: a doctor is being prosecuted for providing basic health care to her patient.” New York’s abortion laws are the polar opposite of Louisiana’s; it is one of at least 19 states that have enacted broad “shield laws” that relieve medical personnel from any liability for the harms their actions may cause and any actions another state may take to hold the personnel accountable.

The Louisiana case is the second in recent weeks involving illegal shipment of abortion pills by the same physician, Dr. Margaret Daley Carpenter, founder of a group called the Abortion Coalition for Telemedicine. In December, Texas Attorney General Ken Paxton (R) filed suit against the remote abortionist, citing her for violating Texas’s right to life law and injuring the woman to whom she mailed the drugs. Paxton’s office asserted that Carpenter “unlawfully provided a Collin County resident with abortion-inducing drugs that ended the life of an unborn child and resulted in serious complications for the mother, who then required medical intervention. Texas laws prohibit a physician or medical supplier from providing any abortion-inducing drugs by courier, delivery, or mail service. Additionally, no physician may treat patients or prescribe Texas residents medicine through telehealth services unless the doctor holds a valid Texas medical license.”

The fact pattern in both cases reveals why the idea of a state-by-state solution to the challenge of abortion on request is unlikely to hold for long. National data, which is always slow to catch up with reality and is full of gaps, suggests that abortion by drug may already constitute two-thirds of all abortions in the United States. Many are prescribed and carried out in the same state, but a large number are occurring as states where abortion is wide open use the Food and Drug Administration’s (FDA) lax rules on telemed abortion to mail drugs without so much as a patient exam much less counseling and post-abortion care.

The Texas and Louisiana cases illustrate how ideologically committed some abortion networks are to mailing the drugs to third parties, omitting determination of whether the girl or woman is freely seeking an abortion, and seem unruffled by the fact that their “patient” is riding to the emergency room hundreds or thousands of miles away without access to the prescribing doctor’s presumed expertise. The injured girl or woman has no shield in this regimen.

Compounding matters further is the fact that, encouraged by FDA policy, information gathering on injuries caused by mifepristone/misoprostol is sparse. In 2016, the FDA took the unusual step of weakening its adverse events reporting requirement for any injury short of death. Reporting of other injuries, including hemorrhaging and hospitalization, were made voluntary. This occurred even as the requirements for in-person examination of the woman and a follow-up appointment were dropped, and the drugs were approved for use later in pregnancy (up to 10 weeks of gestation according to the FDA and even later in pregnancy by some practitioners).

What is transpiring is in effect a vast, ideological experiment on women, some of whom are even being advised by mailers of abortion pills to deceive emergency care providers about their ingestion of the abortion pills. If this does not sound like medicine, it is because it has none of the traits of medical practice: a Hippocratic standard of care, informed consent, mental health counseling and social support, professional examination, post-treatment follow-up and support, and measurement and reporting of outcomes.

Legal abortion advocates understand the stakes in preserving the mirage that abortion drugs are safe. Because of the FDA’s FAERS (FDA Adverse Event Reporting System) suppression of non-fatal injuries and now the advent of interstate telemed, combined with the reality that chemical abortion is a multi-day experience whose worst complications occur days or even weeks later, analysts have found it necessary to look for injuries downstream from the consumption of the drugs. Typically, this might be done through the amalgamation of emergency room treatment of injuries. A second, particularly potent round of analyses was undertaken by expert statisticians at the Charlotte Lozier Institute. Their studies found not only significantly elevated rates of injuries due to chemical abortions funded by Medicaid in 17 states but also documented the acuity of those injuries in absolute terms and relative to those following surgical abortion.

An ideological campaign by a single pharmacy professor at a for-profit university led to a journal making a show of retracting the Lozier Institute studies focused on the rate of ER visits. Lozier and the journal remain in litigation over this political action, whose timing alone would under ordinary circumstances indicate the bias that motivated it. In any event, with the arrival of the Trump administration, an opportunity arises for the FDA to reconsider its reckless steps to demedicalize care for expectant mothers in this context. The formula of remote prescription and delivery, potential third-party administration of drugs, the use of the drugs later in pregnancy when harms are known to increase, and the elimination of mandatory reporting of any harms short of lethal is a prescription for disaster.

Negligence on this front in the past has led the FDA to approve and subsequently rescind its approval for devices like the Dalkon shield and other intrauterine devices. The sterilization device Essure was withdrawn from the market in 2019 after a flood of complaints from women about the damage it caused.

One common complaint about these drugs and devices in the “reproductive” category, and about other challenged items as well, is that reports of harm to the manufacturers do not always reach the FDA, making the items’ safety appear far greater than warranted by actual experience. An article in the September 2021 Journal of Medical Ethics published by the American Medical Association asked the provocative question, “Is the FDA Failing Women?” Its conclusion is that much work remains to be done, including efforts to improve the ease with which an adverse event report can be filed and with which the record of those reports can be accessed and analyzed. The authors write, “It is essential to make the mechanism for AE reporting user friendly and widely accessible and to ensure transparency of AE reporting, as well as enforce requirements for postmarket surveillance to protect women, as well as men, from having dangerous devices implanted without knowledge of potential harms and benefits.”

These thoughts apply in an even more compelling manner with respect to abortion, which some treat as a “super-right,” as the state shield laws attest. History has shown the FDA to be slow to follow and act on the weight of accumulating evidence regarding certain classes of drugs, like oxycontin, and devices, but willing to act if the complainants were politically popular, as were some of the leaders opposing Essure.

Whatever one’s views on abortion generally, on abortion drugs, on do-it-yourself administration of same, there is no grounds for continuation of the FDA’s current practice on adverse events and mifepristone. Evidence persuasively shows that many incidents never come to the FDA’s attention. The new administration pledges to examine the safety of abortion pills — it should begin immediately with the reinstitution of mandatory reporting. It should likewise implement processes that will help avert the disasters happening coast-to-coast when political doctors and other actors leave women and girls to cope alone with the injuries of abortion.