Supreme Court Reviews Abortion Pill Lawsuit Impacting South Dakota Women

The United States Supreme Court is considering a lawsuit involving abortion medicine that could alter how some South Dakota women obtain abortion services by crossing the border into neighboring states.

South Dakota Attorney General Marty Jackley is keeping a careful eye on things, as he, like other state attorneys general, believes that looser federal regulation of abortion drugs makes it more difficult for states to enforce their own laws.

The Supreme Court’s first abortion-related issue since overturning Roe v. Wade in 2022 is about the Food and Medicine Administration’s monitoring of mifepristone, the major medicine used in medicated abortions. A collection of anti-abortion doctors and organizations sued the FDA over policy changes that eliminated the necessity for women to visit doctors in person to receive mifepristone. The policy changes, which were expanded during the pandemic and made permanent in 2021, enabled patients to get a prescription via telemedicine and receive the medicines by mail.

Dr. Julie Amaon, medical director of Just the Pill, a Twin Cities telemedicine provider, has provided nearly 170 South Dakota residents with online consultations and prescriptions to end pregnancies since the Supreme Court’s Dobbs decision overturned Roe and left abortion up to the states.

South Dakota, with its near-total abortion restriction, is one of the states that Just the Pill has targeted. Since its inception as a nonprofit in 2020, the group has served over 7,500 patients in total.

In 2023, the states having the most Just the Pill patients in Minnesota were Wisconsin (143), Iowa (105), and South Dakota (86).

Just the Pill also operates a mobile clinic that may distribute pills in person or perform abortion procedures, possibly expanding patients’ options if the Supreme Court bans mail-order mifepristone.

According to Amazon, the mobile clinic has been used in Minnesota and Colorado, although it has also been threatened by anti-abortion groups on occasion.

“Our main concern with the mobile clinic is the safety and security of our patients and staff,” she added. “We have had a really hard time finding places where it is safe to park, so we are still in the process of evaluating that.”

South Dakota’s abortion law makes it a Class 6 felony for anyone “who administers to any pregnant female or prescribes or procures for any pregnant female” a method of abortion unless it is to save the mother’s life. The offense is punishable by two years in prison, a $4,000 fine, or both.

South Dakota joined 21 other states in backing the plaintiffs in the Supreme Court’s mifepristone case, with Jackley signing an amicus brief describing how lenient FDA procedures are “encouraging lawbreaking on a mass scale.”

“The whole point of the Administration’s recent actions is to encourage and achieve evasion of (abortion-related) state laws,” the line went on to say. “States are thus entitled to enforce their laws … against persons and businesses involved in distributing or receiving abortion drugs by mail.”

Without the Supreme Court rejecting the FDA’s standards, it’s unclear what jurisdiction Jackley would have to pursue conduct that takes place in a state where abortion is allowed yet involves South Dakota residents.

Minnesota enacted legislation in 2023 to improve abortion rights, stating that “every individual has a fundamental right to make autonomous decisions about the individual’s reproductive health.”

In 2023, Jackley told News Watch that his agency considers it a violation of South Dakota law to deliver abortion medicines to a South Dakota address. That is, Just the Pill’s practice of dispensing drugs in the state where they were prescribed would not be considered illegal under current state and federal laws.

Still, interstate trafficking of reproductive health services is a fluid and contentious issue, with enough legal ambiguity to keep everyone on their toes.

When asked on April 2 if his office had any interactions with Just the Pill regarding its practice of providing prescriptions and mailed delivery of abortion pills to South Dakota residents, Jackley responded, “It is generally the policy of this office to not comment on any potential or ongoing investigations/prosecutions.”

Amaon informed News Watch that the South Dakota Attorney General’s office had not contacted her organization.

Just the Pill uses online pharmacies.

Amaon completed a fellowship in reproductive health education at the University of Minnesota Medical Center before becoming the medical director of Just the Pill in July 2020.

The goal was to deploy mobile clinics to provide in-person treatment to remote patients and those from states with strong abortion laws. However, when the FDA approved the sending of abortion pills owing to the pandemic, the organization shifted to providing telemedicine and mail-order services.

The Guttmacher Institute, a reproductive health group, reports that more than half of all abortions in the United States are performed with medication.

Just the Pill charges $350 per patient and uses internet pharmacies such as American Mail Order out of Michigan and Honeybee Health out of California.

“To access services, a patient from South Dakota would drive to Minnesota and have a phone visit with a clinician that lasts about 15 to 20 minutes,” said Amaon, adding that some jurisdictions demand video calls. “Then we would mail their medications to either a FedEx pickup spot or general delivery at the post office, whatever works best for them.”

A telemedicine follow-up is scheduled within two weeks to check on the patient and “make sure everything went as expected,” Amaon said. “We also reach out at four to five weeks for a pregnancy test at home, to make sure the process is complete.”

The safety of abortion drugs has been disputed.

The Supreme Court’s verdict on the mifepristone issue is not expected until at least June. The majority of the commentary following the March 26 hearing centered on conservative justices’ skepticism about the need for sweeping reversals of FDA policy, as well as the doctors’ lack of legal standing in the lawsuit.

“This case seems like a prime example of turning what could be a small lawsuit into a nationwide, legislative assembly on an FDA rule or any other government action,” Justice Neil Gorsuch, who was selected by Donald Trump, said during the hearing.

Jackley and South Dakota Governor Kristi Noem have expressed reservations about the safety of pharmaceutical abortions. They warn out that if something goes wrong, such as excessive bleeding or infection, a woman who takes the pills at home will not be able to receive emergency medical attention.

Last year, Jackley and 19 other attorneys general signed a letter from Missouri Attorney General Andrew Bailey that raised the risk of coercive abortions with less oversight. The letter also noted a 2015 study that discovered pharmaceutical abortions were “5.96 times more likely to result in a complication than first-trimester aspiration abortions.”

However, Amaon cited a study published in the Lancet Regional Health medical journal in 2022 that found a 98 percent success rate in terminating pregnancy for women who obtained abortion pills through a telehealth provider, with the same percentage of patients reporting satisfaction with the experience.