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Safe Harbor A legal guide to accessing self-managed abortion care in Iowa, right now.
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BY LILIAN WINTERS
bortions are currently permitted in the state of Iowa up to 20 weeks’ gestation, but not without barriers. Iowa recently imposed a 24-hour waiting period, accompanied by other requirements. Patients must undergo an ultrasound, have the option to see the image and hear the sounds associated with the procedure and be advised on options available other than abortion. For those with sufficient resources, living close to an abortion clinic, the waiting period will amount to nothing more than an inconvenience. For others, the costs and logistics created by the law could be devastating. Moreover, Iowa is expected to impose a ban on abortions after six weeks of pregnancy. If this extreme restriction is upheld by state courts, the timeline a pregnant person would have to legally effectuate abortion could be limited to just a few days at most. Combined with the 24-hour waiting period, it will effectively function as an elective abortion ban. In strong resistance, abortion activists are advocating for self-managed abortions, induced in the first 10 weeks of pregnancy by taking mifepristone and misoprostol, two FDA-approved drugs known collectively as “abortion pills.” Despite these drugs being safer than Tylenol and meeting many of the FDA’s criteria to be overthe-counter, they are available only with a prescription from a physician. But patients can now get prescriptions for mifepristone and misoprostol via telehealth, acquiring them online from companies like Plan C, Aid Access, Carafem, Just The Pill and Hey Jane. Regardless of the state their patients live in, each company ships pills directly to their homes. In Iowa, the 24-hour waiting period would require a patient seeking self-managed abortion to schedule a telehealth appointment only after first undergoing an ultrasound at an in-person clinic and providing certification of such to her telehealth provider—pressing the already tight 10-week timeline. If abortions remain legal up to 20 weeks in Iowa, it is still possible for many Iowans to overcome the state’s legislative hurdle and receive abortion care. If, however, Iowa imposes a six-week ban, seeking self-managed abortions via telehealth would not be legal past six weeks’ gestation, nor reasonably feasible within that
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timeline. So, if telehealth physicians act outside of the governing law and choose to provide Iowans with abortion pills after the six-week mark, they open themselves up to legal liability. That doesn’t seem to be stopping companies from shipping abortion pills to anyone who needs them. In fact, to protect American physicians from liability, many companies that provide the pills online connect people seeking self-managed abortions with foreign physicians willing to ship internationally. While the practice is illegal, overseeing foreign physicians and attempting to regulate their practice is not practical nor is it an efficient use of government resources. As of now, there are no known prosecutions for the purchase and shipment of abortion pills. While charges have been brought for the subsequent abortion offense in a few instances, this is not yet the norm. In fact, some prosecutors are pledging to not bring criminal charges against those who seek out self-managed abortions. Even some governors across the country are publicly saying that despite laws prohibiting abortion pills, patients will not be prosecuted. Unfortunately, Gov. Kim Reynolds is unlikely to make any such assurances to Iowans. Even if Iowa prosecutors join the movement and promise a safe harbor for abortion seekers, a mere promise falls short of any real, widespread security from prosecution. In the wake of the Supreme Court’s ruling on Dobbs v. Jackson Women’s Health Organization, GenBioPro, Inc., the manufacturer of mifepristone, brought an action against the state of Missouri alleging that its ban on all elective abortions, including self-managed abortions, is preempted under the FDA’s 2021 decision permitting abortion pills to be dispensed online. The case may be the reassurance women are hoping for. If the court rules in the company’s favor, Missouri will no longer be allowed to enforce the ban. Previous cases brought by drug manufacturers challenging state regulation of a manufactured drug have been successful, including Zogenix, Inc. v. Patrick out of Massachusetts. State legislation attempted to regulate an opioid, but the court there held that strict regulation of an FDA-approved drug was preempted and, therefore, unenforceable. With further abortion restrictions looming over Iowa, future access to self-managed abortions remains uncertain. However, the pending GenBioPro decision might make that an unnecessary worry. Lilian Winters is a University of Iowa alumna and a recent graduate of Loyola University Chicago School of Law.
