Abortion-rights attorneys help patients and providers navigate legal chaos

These days Kylee Sunderlin is often the first person people will talk to about needing or wanting to terminate a pregnancy, even though she’s not a nurse or doctor or a loved one. She’s a lawyer. 

This is Sunderlin’s third year overseeing a national hotline dedicated to helping people navigate legal questions around abortion in their states. Calls have been at an all-time high, she said, as have callers’ fear and confusion.

“It’s just all really scary right now – I can hear it in people’s voices,” said Sunderlin, the legal support director for the nonprofit If/When/How. The organization is part of a nascent network of reproductive rights legal-assistance groups and law firms called the Abortion Defense Network, which formed in response to sustained legal uncertainty around abortion rights in the U.S.

“There’s a real sense that people are scared that if they share their pregnancy, or any information at all, that they are necessarily going to put someone else at legal risk, not just themselves. And so I’m just seeing and sensing a type of isolation that I hadn’t seen previously,” Sunderlin said. “People are navigating this alone.”

It’s been nearly one year since the U.S. Supreme Court overturned the federal right to terminate a pregnancy, followed by confusion and fear about contradictory state abortion laws and unresolved legal challenges. In this legal chaos emerged the Abortion Defense Network, which publicly launched in February and is trying to make providers and patients feel less alone. The network is a one-stop shop for patients and loved ones, and providers and practical support groups. Working together, the six reproductive rights groups in the network provide free legal advice, pro bono representation, and help paying legal expenses. 

“We believe this is a very robust system with serious legal and practical support that we are trying to get out to the community so that people who provide and support abortion care can continue to perform their vital services,” said Cassie Ehrenberg, senior counsel for pro bono initiatives for the Lawyering Project, which manages the intake calls and operations of the network. Its five partners are: the American Civil Liberties Union, the Center for Reproductive Rights, If/When/How, the National Women’s Law Center, and Resources for Abortion Delivery, in addition to seven anchor law firms.

The Supreme Court is once again about to make a consequential decision about medication abortion in the Texas-based Alliance for Hippocratic Medicine v. U.S. Food and Drug Administration case, one of several federal cases related to the abortion drug mifepristone. And though nobody knows whether and in what states the most common form of abortion post-Roe will remain legal and available by the end of this week, abortion rights advocates told States Newsroom they are determined to find ways to help people access safe abortion care and understand their rights.

“These federal rulings, particularly from the judge in Texas, it’s creating even more chaos and confusion for people who are seeking abortions,” said Sunderlin, who along with a small team of trauma-informed attorneys fields calls from people of various ages, races and backgrounds from around the country. “And every time this happens, we see an increase in calls.”

A more than 2,000% increase in abortion patient calls

Sunderlin said If/When/How transformed its Repro Legal Helpline in June 2020, from an informational helpline to one where people seeking abortions could be promptly connected to legal services. More staff were hired after Roe v. Wade fell in June 2022, when the helpline saw a whopping 2,460% increase in inquiries, Sunderlin said. She noted that the helpline has been consistently receiving hundreds of calls every month since then.

A lot of the questions that helpline attorneys are fielding these days are about the legal risks of seeing a health provider at all, Sunderlin said, whether it’s just to confirm the pregnancy or to seek care for complications of a self-managed medication abortion or to seek care for a medical emergency in a wanted pregnancy. Her group’s legal advice depends on each individual’s circumstances, including their geography and relationships. 

“You’re really responding to people’s legal questions, but also responding to their needs as whole humans coming to us in a really chaotic, difficult time,” Sunderlin said. “If there’s anything we can do to help alleviate people’s fear, that’s my primary goal and what I’m constantly thinking about.”

If/When/How, which has researched abortion-related criminalization in the U.S., published a report last year showing that people who go to jail for having or assisting with an abortion were often reported to law enforcement by health care providers or family members and acquaintances. If/When/How created a legal guide with Physicians for Reproductive Health, which says patients are within their legal rights not to disclose a medication abortion to an emergency room doctor or other health care provider. The guide notes that an abortion via medication presents like a natural pregnancy loss and usually requires the same care if complications arise. 

Right now only Nevada and South Carolina have laws on the books criminalizing self-induced abortions, Sunderlin said, though that hasn’t stopped states from charging pregnant people under various statutes. If/When/How found 61 cases between 2000 and 2020 across 26 states of people investigated or arrested for ending their own pregnancies or helping others to do so. And presently more states are floating policies to charge pregnant women who have abortions. 

Anti-abortion efforts to police health information and criminalize out-of-state abortion travel have only perpetuated the difficulty of accessing abortion for many Americans, especially those without the means to travel, Sunderlin said. 

“People have taken their healthcare into their own hands throughout the course of history,” Sunderlin said. “[W]ith all of this chaos and confusion, that is increasingly becoming the reality for people as access becomes more and more scarce. And with this increased need for people to end their own pregnancies, for people that take their medical care into their own hands, there’s a very real risk of being criminalized for doing that.”

Abortion providers are not going away

Abortion providers, meanwhile, are scrambling to figure out how to provide care, depending on which way the Supreme Court rules on Friday in the Texas federal case, which concerns mifepristone, part of the two-drug medication abortion regimen. The high court could uphold the appeals court’s decision that keeps mifepristone on the market while the lawsuit unfolds but also re-implements old, out-of-date restrictions, including shortening the timeline when people could access the drugs from 10 weeks to seven weeks’ gestation, and would potentially eliminate access to the generic version of the drug. 

Dr. Gabriela Aguilar, the regional medical director for Planned Parenthood of Greater New York, told States Newsroom that Planned Parenthood providers are determined to keep providing patients with abortion care no matter what happens. They have been planning for different scenarios that could come out of the Supreme Court’s ruling and are preparing to potentially provide only misoprostol, the other drug in the regimen. Providers say this is safe and effective, but still less effective and generally more pain-inducing than the current FDA two-medication regimen, which has a two-decade-long high safety and efficacy record. 

“We’re sitting in a holding pattern right now where we’re trying to stay optimistic – hope for the best, plan for the worst,” Aguilar said. “We’re going to continue providing medication abortion no matter what.”

Aguilar said patients are very confused right now, especially when they see constant news headlines of mifepristone being banned, even though that has not yet happened. She said she worries how a sudden change to medication abortion law will impact her patients. 

“What needs to be recognized is that mifepristone is not just used for abortion,” Aguilar said. “It’s also used for management and treatment of miscarriages. So this entire community of people who have early pregnancy losses are being left out of the conversation and potentially put in these scenarios where they’re not going to have as effective or patient-centered experience.”

On a press call organized by reproductive rights groups Tuesday, public health and FDA regulatory experts expressed frustration that the legal questions about mifepristone in this case are medically baseless and will likely lead to public health harm and massive confusion among health providers and public health departments nationwide.

Ushma Upadhyay, a professor and public health scientist at the University of California, San Francisco, said that if mifepristone is even temporarily taken off the market or if old out-of-date restrictions are returned, “that will send the abortion provider field into a little bit of chaos.”

“I think that was the intention of this, of these court cases in the first place,” Upadhyay said. “Providers will have to figure out what is the best course forward based on the state they’re in, based on their patient populations.”

But in all of the anxiety over what will happen next in the fight over abortion access, the Lawyering Project’s Ehrenberg said she’s been heartened to see the determination among providers to continue providing health care in a frightening legal landscape.

“What I wish other people could see is that the resolve and the commitment to continuing to bring this care forward to patients and community members is so steadfast and so strong, that it really is heartening in the midst of this,” Ehrenberg said. “[Providers] are looking to navigate this horrible new landscape, but they are resolved to do that.”