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What does Utah’s trigger law say about abortion pills by mail or telehealth? We looked.

Salt Lake Tribune logo Salt Lake Tribune 7/8/2022 Becky Jacobs
(Leah Hogsten | The Salt Lake Tribune) Planned Parenthood Metro Health Center birth control patient education kit with demonstration products contains 15 birth control products for educating patients, Tuesday, May 10, 2022. © Leah Hogsten (Leah Hogsten | The Salt Lake Tribune) Planned Parenthood Metro Health Center birth control patient education kit with demonstration products contains 15 birth control products for educating patients, Tuesday, May 10, 2022.

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Under Utah’s abortion trigger law, medication abortions are regulated and limited the same way as in-clinic, surgical abortions in the state.

But what do Utah’s laws say about getting abortion pills through the mail? How about getting abortion pills through a telehealth visit with a doctor in another state? Can you still get emergency contraception, such as Plan B?

And what is the law about access to the pills right now — with the trigger law temporarily on hold, and a law that instead bans abortions after 18 weeks of pregnancy in effect?

The answers aren’t all clear. The trigger law, for example, regulates physicians who provide abortions in Utah, not pregnant people who receive the pills. But the portion of Utah’s Code that addresses abortions does not specifically address Utahns receiving abortion pills by mail or through a telehealth visit.

So, to the answer those questions, The Salt Lake Tribune read through Utah Code and interviewed Leslie Francis, an expert in health law and bioethics at the University of Utah. Here’s what we found.

First, what is a medication abortion?

A medication abortion involves two drugs: mifepristone, which is taken first, followed by misoprostol.

The mifepristone “blocks your body’s own progesterone, stopping the pregnancy from growing,” according to Planned Parenthood. Then, the misoprostol, which can be taken up to 48 hours after, “causes cramping and bleeding to empty your uterus.”

“The same pills used for abortion are also used to treat miscarriage and those are provided at many hospitals in the state,” said Dr. David Turok, an obstetrician/gynecologist practicing in Salt Lake City.

Currently, abortion pills are generally available and effective early in a pregnancy, up to 11 weeks, according to Turok. Since the ban now in effect allows for abortions until the 18th week of pregnancy, it isn’t limiting Utahns’ access to the pills.

“The effectiveness depends on how far along you are in your pregnancy when you take the medicine,” according to Planned Parenthood’s website.

Medication abortions are available at three Planned Parenthood Association of Utah locations — the Metro Health Center, Salt Lake Health Center and Logan Health Center — and at Wasatch Women’s Center in Salt Lake City. (In-clinic, surgical abortions are available only at the Metro Health Center and Wasatch Women’s Center. Private physicians provide some abortions, too.)

So, what does the trigger law say?

Hours after the reversal of Roe vs. Wade, Utah’s trigger law went into effect and banned most abortions in the state, except for in a few limited circumstances. But then a state judge temporarily blocked the law, preventing it from being enforced for the following two weeks. Another hearing is scheduled July 11.

To analyze the trigger law, Francis said, you first have to look at how it defines “abortion” and “physician.”

According to the law, an abortion is:

• The intentional termination or attempted termination of human pregnancy after implantation of a fertilized ovum, or,

• The intentional killing or attempted killing of a live unborn child, or,

• The intentional causing or attempted causing of a miscarriage,

through a medical procedure carried out by a physician or through a substance used under the direction of a physician.

And a physician is a medical doctor licensed to practice medicine and surgery in the state; or an osteopathic physician licensed to practice osteopathic medicine in the state; or a physician employed by the federal government who has similar qualifications.

“So, if I were to drive to Colorado or Nevada,” Francis said, “and get the abortion pill” from a doctor who is not licensed in Utah “and bring it back into [Utah] and take it, under the literal language of the statute, that’s not an abortion.”

Using that same logic based on the law’s wording, it would also not technically be an abortion if a doctor in Las Vegas, who is not licensed in Utah, “prescribes Mifeprex” (a medication used to end a pregnancy) “for me,” Francis said, “somebody picks it up at a Las Vegas pharmacy, puts it in a brown paper envelope and mails it to me.”

And it wouldn’t be an abortion if a person sat in a living room in Utah and had a telehealth visit with a doctor who is in another state and who is not licensed in Utah, she said, who prescribed medication for an abortion.

The key part of these scenarios is the physician.

“If they’re licensed in Utah, if I get it under their direction, then it would be an abortion,” Francis said. “But if I go out of state to get it, and they’re not licensed in Utah, it would not come under the terms of ... the statute.”

But in that last telehealth situation, “that would be the unauthorized practice of medicine in Utah,” she said, and “it would be a violation of the Utah Telehealth Act,” according to Francis.

The question then becomes, “How is Utah going to find out about it?” Francis said. “And what is Utah going to do about it?”

For instance, people order “medication abortion pills online from the European nonprofit Aid Access, which operates outside the U.S. health care system but has worked to provide Americans with telemedicine-based medication abortions since 2018,” the news outlet The 19th* reported.

“The legality of all this, however, is untested,” according to The 19th*.

If someone in Utah ordered abortion pills from a company like that and managed their own abortion at home, “the literal read of [the trigger law] definition is that it is not an abortion,” Francis said, “if it’s carried out at the direction of someone who is not licensed to practice medicine in the state.”

But what about the part of the trigger law that says an abortion may be performed in this state “only by a physician” and only “in an abortion clinic or hospital, unless it it necessary to perform the abortion in another location due to a medical emergency”?

Reading that section, Francis said, you have to again go back to how the definition of an “abortion” includes the physician. If the doctor is not licensed in Utah, it’s not technically an abortion.

During her interview with The Tribune, Francis stressed that she was not trying to “take a position one way or another” with her answers. Rather, Francis said, she was parsing the literal language of the statute as a lawyer.

What about other parts of Utah’s abortion laws?

The trigger law has a superseding clause, which essentially says that the law trumps anything else that may conflict with it.

But Francis said she doesn’t think it conflicts with other requirements already outlined in Utah Code, because the trigger law allows for some abortions under limited circumstances.

When someone decides to get an abortion, they first have to complete the online information module on the Utah Department of Health’s website, said Katrina Barker, spokesperson for Planned Parenthood Association of Utah. Then, they have do a face-to-face informed consent session, which can be done as a group or individually at Planned Parenthood’s health centers.

“We also offer that through telehealth appointments,” Barker said. “So if somebody lives further away from the clinic, they don’t have to come twice.”

After that informed consent session is done, the person has to wait 72 hours before going to their abortion appointment, she said. At Planned Parenthood, you have to come in person for your appointment, she said, even if you are having a medication abortion instead of an in-clinic, surgical abortion. (A person takes the first abortion pill at the clinic, and they can take the rest at home.)

The reason for that is not anything required in Utah Code, according to Barker. The face-to-face wording only applies to the informed consent session, she said, and “there is not a law that specifically prohibits a completely telehealth medication abortion,” despite a previous attempt.

During Utah’s 2017 general legislative session, there was a telehealth bill that, at one point, included language that would have barred clinicians from prescribing abortion-inducing medication through telemedicine. After some feedback and debate, though, a legislative committee removed that portion from the final version.

Still, Planned Parenthood has required in-person appointments for abortions, Barker said, because this has been “a murky area” in the state’s abortion laws, and it’s “something that Planned Parenthood has chosen not to push the envelope on.”

Francis predicted that “the reason telehealth is going to come up” with the trigger law “is not my deciding whether I walk down to my doctor’s office or schedule a telehealth visit here in Salt Lake. It’s whether I do it in Nevada,” or another state.

Are there other things to consider?

Even after the U.S. Supreme Court’s abortion ruling, there’s still a lot that will need to be figured out, Francis said. Here’s one scenario she’s thinking about:

A doctor from Connecticut comes to Utah every year to ski. He has a website that says, “Utah women needing help, call me, and I’ll get the medicine to you.”

“This doctor isn’t licensed to practice in Utah,” Francis said, but he’s qualified, according to the Federal Drug Administration, to prescribe Mifeprex (a medication used to end a pregnancy).

“What can Utah do about it?” Francis asked. “Could Utah try to go after this doctor, arrest him when he comes out to ski next year?”

Francis said she thinks that this is “very complicated legal territory that is going to be utterly fascinating in the next couple of years.”

And the reason that she picked the doctor to be from Connecticut in this scenario, she said, is that Connecticut and other states “are specifically enacting laws protecting their licensed physicians against action by other states.”

“So, if Utah and Connecticut were to duke it out, what happens?” Francis said. “We don’t know.”

Some lawmakers in other states are also working on legislation to prevent people from crossing state lines to get an abortion. So far, Utah has not done this. And at a press conference last month, Rep. Karianne Lisonbee, who was one of the sponsors of Utah’s trigger saw, said she does not foresee lawmakers taking this step.

The situation is fluid, though. For instance, Montana was seen a potential safe haven for people looking to escape their state’s trigger law, Kaiser Health News reported Thursday. But four of the state’s five clinics are now preemptively limiting access to abortion pills for out-of-state patients in an effort to protect themselves and patients from legal attacks, according to the news outlet.

From what Francis can tell after reading the Supreme Court’s ruling last month, “there are only four votes on the court potentially to uphold any state statute that tried to stop women from going elsewhere for abortions and bringing the medication back.”

For instance, Justice Brett Kavanaugh voted with the majority to overturn Roe v. Wade, but he wrote a separate opinion, which said, among other things, that “people have a right to travel,” Francis said.

“In his view, this decision does not extend to upholding state efforts to prevent women from leaving the state to get an abortion,” she said.

There’s also the issue, Francis said, of whether FDA approval of abortion pills would preempt the state prohibitions.

“It’s going to be a very interesting question,” she said, “whether abortion medication is going to be viewed differently from, you know, an antihypertensive.”

What about emergency contraception?

The morning-after pill, such as Plan B or ella, is not a medication abortion. It is emergency contraception that can be used if you had unprotected sex or if your birth control method did not work, according the federal Office on Women’s Health website.

“If you are already pregnant, emergency contraception pills do not stop or harm your pregnancy,” the website states. Rather, emergency contraception pills prevent or delay an egg from being released from the ovary, or by preventing sperm from fertilizing an egg, according to the website.

Again, Utah’s trigger law defines abortion as “the intentional termination ... of human pregnancy after implantation of a fertilized ovum.” And implantation is when the embryo begins to grow in the uterus, according to the University of San Francisco Health’s website. So, the trigger law does not affect emergency contraception.

But after the U.S. Supreme Court overturned Roe v. Wade, Amazon joined other retailers and started limiting how many emergency contraceptives people can buy, the Associated Press reported.

Timeline of Utah’s abortion laws

March 2019: Utah Legislature passes HB136, banning abortions after 18 weeks of pregnancy.

April 2019: Planned Parenthood Association of Utah sues, challenging constitutionality of 18-week ban. A federal judge issues an injunction that keeps the law from being enforced while that case is pending.

March 2020: Utah Legislature passes SB174, creating a trigger law that would ban most abortions in the Beehive State if the U.S. Supreme Court ever overturned Roe v. Wade.

Morning of June 24, 2022: U.S. Supreme Court overturns Roe v. Wade.

Evening of June 24, 2022: Utah’s trigger law (SB174) goes into effect.

June 25, 2022: Planned Parenthood Association of Utah sues, arguing trigger law violates rights in Utah Constitution.

June 27, 2022: An emergency court hearing is held. A state judge grants a temporary restraining order, blocking the trigger law from being enforced for two weeks. Meanwhile, the federal lawsuit over the 18-week ban is dismissed.

June 28, 2022: Utah’s 18-week ban goes into effect, while trigger law is on hold. This law does not restrict access to medication abortions, as the pills are effective until about 11 weeks of pregnancy. It also does not restrict access to emergency contraception.

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