This could apply to any drug that is legal for a certain purpose in one state of the US, but illegal for that purpose in another state. However, the case I have in mind is mifepristone and misoprostol. These drugs are prescription-only in the US, and they have uses such as treating Cushing's disease and stomach ulcers, as well as inducing an abortion. Because state abortion laws vary, I imagine that it could already be illegal to use these drugs under certain conditions in certain states, and in any case we will probably see by the summer of 2022 that abortion is completely illegal in many states.

Suppose that a woman lives in Mississippi, where it's illegal to use a certain drug for a certain purpose. She makes a telehealth appointment with a doctor in California, where it's legal to use that drug for that purpose. The doctor prescribes her the pill, and she orders it from a mail-order pharmacy in California. Can anybody be prosecuted by Mississippi, and if so, whom?

Can Mississippi not prevent this because only the federal government can regulate interstate commerce?

Can the doctor get in trouble because they don't have a medical license that's valid in Mississippi, or will they not be vulnerable because the doctor is not in Mississippi, and Mississippi can't do anything without help from California, which will refuse? I don't know if it's currently legal for a doctor in California to treat someone in another state by telemedicine, but if not, can California simply pass a law to make it legal?

Can Mississippi subpoena the doctor or pharmacy's records to obtain the names of women who have used this process, or would this not work due to a lack of jurisdiction? Would Mississippi have to ask the FBI to get the women's names, in which case the strategy wouldn't work if the FBI wasn't willing? Or could it be legal for the doctor simply to provide telehealth services without asking for the woman's name?

1 Answer 1


Since this question didn't attract any answers, I did a little online research and put together the following self-answer.

There are groups that have web sites like heyjane.co and abortionondemand.org and will help people get telehealth abortions, but these particular groups are trying to stay within relevant state laws, so they will only help patients who are physically present in one of the states on a fairly short list. These are basically states where abortion is easy to get anyway.

There is also at least one group, Aid Access, that is based overseas and aggressively ignores US laws. They will do an email consultation from their offices in Austria with any patient in the US for a telemedicine abortion, and then write a prescription to be filled in India and mailed to the US.

The FDA has swerved wildly in their regulatory approach. Under Trump, they sent a warning letter to Aid Access, intercepted packages, and interfered with payments. As far as I can tell, they get their authority to do this because the drugs are prescription and the FDA regulates interstate telemedicine. Restrictions have come on and off because of the desire to allow telemedicine during COVID, and also because of the change of presidential administration.

Aid Access is violating the laws of various states by practicing medicine there without obeying state laws. 19 states have laws making telemedicine for abortion illegal, and Aid Access also refuses to obey laws such as ones requiring medically unnecessary ultrasounds. However, it doesn't appear that there has actually been any attempt to enforce these state laws against Aid Access.

In general, medication abortions are very difficult for a government to control. The process of having a medication abortion is essentially the same as the process of having a miscarriage. When a woman has a medication abortion in violation of local laws, there is a slight chance that there will be a medical problem, just as there can be a medical problem if something goes wrong during a miscarriage. In this situation, Aid Access recommends that the woman simply tell the doctor that she had a miscarriage.

A disadvantage of Aid Access's method is that the pills shipped from India can take a random amount of time to clear customs, up to several weeks. Plancpills.org has advice on methods for getting one's prescription filled inside the US. One method is to get the pills sent to general delivery in a state where it's legal, then travel there to pick them up. Another is to use a mail forwarding service. The latter method probably violates state laws, but because the US mail has good privacy, enforcement is probably impossible.

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    So if state A is Texas and state B is Austria or India, A can’t prohibit it, or can’t enforce it, but A can interfere with the process within A.
    – gnasher729
    Commented Dec 13, 2021 at 5:39

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