Loophole in abortion bill raises skepticism, nonprofit acknowledges free speech defense

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LUBBOCK, Texas — During last Monday’s Supreme Court hearing, Justice Brett Kavanaugh expressed concern about a loophole in a Texas abortion bill allowing people who might be “aiding and abetting” abortions to use constitutional defenses.

Justice Kavanaugh theorized people might use a free speech or freedom-to-exercise-religion defense if they are sued by private citizens under Senate Bill 8.

Christie Pitney is a certified midwife who works with reproductive healthcare organizations, including Aid Access and Plan C Pills. She said on Friday that the organizations she works with offer telemedicine options, like abortion pills by mail, with and without clinician support.

Plan C, a research-based organization providing information on how to access abortion pills online, said Monday that after SB-8 passed, its website traffic increased from 500 visitors a day to 25,000 in a 24-hour period.

“A huge chunk of the traffic to our site is from Texas, probably about a third of the traffic overall from the entire country is coming just from Texas,” said Elisa Wells, the co-founder of Plan C.

Wells said her organization understands the potential risks it takes when speaking out about abortion, but “we don’t provide actual pills.”

It only provides information on accessing abortion-inducing medications, commonly marketed under the names “misoprostol (Cytotec) and methotrexate.”

“Our understanding from talking to lawyers is that [providing information] is protected as free speech,” Wells added.

Pitney said that regardless of whether or not abortion is legal in your state, reproductive healthcare may not always be accessible.

“There are numerous barriers, such as traveling to a clinic, cost, arranging for childcare, or days off of work and things like that,” Pitney explained.

Those barriers are especially challenging for marginalized communities Wells said, which is partly why organizations like Plan C and Aid Access exist.

“We have made the decision to continue to speak out about it,” Wells shared.

Risking a civil lawsuit, Wells said her organization will continue to provide resources to women globally.

Criminalizing abortion pills by mail

Senate Bill 4, which passed last month, makes the distribution of abortion pills by mail a criminal offense.

Many telehealth providers who write prescriptions for abortion pills will not face criminalization, even if they are distributing to women in Texas. The prescriptions are often written by physicians located across the globe.

For the women who order abortion-inducing pills online, neither SB-8 nor SB-4 can bring about civil or criminal consequences.

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