Guest Essay

A photo illustration with a shadow of a hand reaching for a pill that has fallen through a hole in a piece of paper.
Credit…Aspen Mays for The New York Times

By Patrick Adams

Mr. Adams is a freelance journalist based in Atlanta.

Nearly three years ago, Poland’s Constitutional Tribunal effectively ended legal abortion in the country. Since then, the Polish government has vigorously repressed the nation’s reproductive rights movement and ramped up surveillance of women who are suspected of terminating their pregnancies. Authorities have violently dispersed demonstrations, threatened activists with prison time and ordered doctors to record all pregnancies in a new national database.

Even before Roe v. Wade was overturned last summer, Poland’s draconian crackdown, which was spearheaded by the governing right-wing Law and Justice party, should have been alarming to American supporters of abortion rights. It was always possible that some aspects of what has happened there could happen here.

Now there are reports that laboratory tests to detect abortion drugs have not only been created in Poland but are, in rare cases, also being used there to investigate the outcomes of pregnancies. These tests are not yet known to be in use anywhere else in the world. But Americans would be wise to plan for the possibility that the technology could one day be adopted on this side of the Atlantic and used by law enforcement to suss out whether women have taken abortion pills — which are now banned or restricted in more than two dozen states.

Women in Poland and the United States have increasingly relied on informal networks for access to mifepristone and misoprostol, the drugs typically used in a medication abortion. In both countries, women can easily find information online and via telephone hotlines about how to use them to safely self-manage an abortion. That information often includes tips for protecting yourself from being targeted by law enforcement, as has already happened to some women who took abortion pills or were suspected of doing so.

For years, reproductive rights advocates have assured American women that when these medications are taken by mouth, a doctor cannot determine whether they were taken to induce an early abortion because the symptoms are indistinguishable from a miscarriage and because the drugs don’t show up on toxicology screens.

But Polish scientists claim they’ve devised laboratory methods to detect mifepristone and misoprostol in biological specimens, and a spokeswoman for the regional prosecutor’s office in Wroclaw confirmed that these tests have been used in Poland to investigate pregnancy outcomes.

In a paper published last October in the journal Molecules, a group of researchers at Wroclaw Medical University’s department of forensic medicine and the Institute of Toxicology Research in Poland described a technique for detecting misoprostol acid, a substance produced by the metabolism of misoprostol, in tissue taken from the placenta and the fetal liver. Weeks later, they published a second paper describing the development of a “rapid, sensitive and reliable method” to detect the other abortion drug, mifepristone, in maternal blood. The studies were conducted as part of a state-funded research project started in 2022.

The researchers, one of whom identifies as pro-choice, wrote that they developed these tests in part out of concern that the availability of abortion pills on the black market poses a public health threat. But it is difficult to see how this form of testing has medical or public health value, given the well-documented safety and efficacy of abortion pills. In effect, it seems strictly punitive — to harass and intimidate people who self-manage their abortions and to collect evidence about anyone who helped them get pills. Under Polish law, women cannot be prosecuted for taking abortion pills, but you can go to jail for helping someone else get them.

Last March, a court in Warsaw found a human rights activist guilty of just that. Justyna Wydrzynska, a co-founder of the Abortion Dream Team, a Polish abortion rights group, was sentenced to eight months of community service for providing abortion pills to a woman in an abusive relationship.

That conviction, the first of its kind in Europe, brings to mind the situation in El Salvador, where abortion is banned under all circumstances, including when the pregnant person’s life or health is in danger and in cases of rape. Women who suffer miscarriages and stillbirths in El Salvador are sometimes accused of homicide and sentenced to years or even decades in prison.

Now that Roe has been overturned, U.S. abortion-rights advocates are bracing for cases like these to become increasingly common in America. A small but growing group of abortion abolitionists are calling for women who get abortions to be charged with murder and criminally punished — even put to death. Some Republican lawmakers are listening; this year alone, more than half a dozen states have introduced legislation that would classify abortion as homicide, a strategy experts believe could gain greater support should others fail. One such existing effort: a serious legal challenge to the Food and Drug Administration’s nearly 25-year-old approval of mifepristone that threatens access to the drug across the country. (In mid-August, a federal appeals court panel upheld mifepristone’s approval but with significant restrictions on patients’ access to the drug. The ruling cannot go into effect until the Supreme Court weighs in.)

Amid these concerns, reproductive rights activists need to prepare for the possibility that testing for abortion drugs could happen here, too. Even the threat of such a test could have dire consequences for reproductive health, deepening distrust of the medical establishment and discouraging people from seeking care. Should prosecutors in Poland inspire copycats in American states, no health care provider should enable or support such a move.

The testing methods developed at Wroclaw employ what’s called tandem mass spectrometry, a sophisticated analytical technique regarded as the gold standard for the detection and quantification of chemical compounds in biological material. For decades, the significant cost of mass spectrometers and the technical knowledge needed to maintain and service the machines confined them to highly specialized laboratories. But as the technology has evolved, experts say, it’s become easier to use and far more accessible.

Almost every toxicology lab that supports a coroner’s office or medical examiner’s office in the United States “has several of these instruments, specifically for the purpose of finding drugs and drug metabolites in biological tissues of all kinds,” said Dr. Glen P. Jackson, a professor of forensic and investigative science at West Virginia University. “There are also many labs that work alongside emergency wards to identify poisons and toxins and drugs used in overdoses.” It would be “really quite easy,” he said, for any of them to develop methods similar to those described in these papers.

“There’s the potential for these tools to do a lot of good,” said Nicholas Manicke, a professor of chemistry and forensic science at Indiana University-Purdue University, Indianapolis. Dr. Manicke’s research focuses on making mass spectrometry simpler and easier to use for things like cancer research, organ transplantation, screening for explosives at airports and identifying contaminants in food. “But given the political climate, they’re also ripe for use by opponents of abortion.”

Drug testing in clinical settings in the United States is largely unregulated, and the decision making at individual facilities is often opaque. Michele Goodwin, a law professor at Georgetown University, has documented the dangers of doctors and nurses having discretionary power to interpret state statutes and report their patients to law enforcement. Ms. Goodwin writes in her book “Policing the Womb: Invisible Women and the Criminalization of Motherhood” how a visit to a doctor’s office or hospital can double as a criminal investigation, leading to arrest and prosecution under a wide range of laws that purport to protect fetuses.

While most such laws preclude bringing charges against the pregnant woman, overzealous prosecutors have nevertheless done so.

Testing for abortion drugs is just the latest effort by the Polish government to enforce a stringent law. It’s a perversion of science for political ends and a possible preview of what awaits us in America’s post-Roe future.

Patrick Adams is a freelance journalist based in Atlanta.

Source photograph by James Worrell/Time & Life Pictures, via Shutterstock.

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