“That I Don’t Know”: The Uncertain Futures of Our Bodies in America

By Wendy S. Salkin

I. Our Bodies, Our Body Politic

On March 30, at a town hall meeting in Green Bay, Wisconsin, an audience member asked then-presidential-hopeful Donald J. Trump: “[W]hat is your stance on women’s rights and their right to choose in their own reproductive health?” What followed was a lengthy back-and-forth with Chris Matthews. Here is an excerpt from that event:

MATTHEWS: Do you believe in punishment for abortion, yes or no as a principle?
TRUMP: The answer is that there has to be some form of punishment.
MATTHEWS: For the woman.
TRUMP: Yeah, there has to be some form.
MATTHEWS: Ten cents? Ten years? What?
TRUMP: I don’t know. That I don’t know. That I don’t know.

Much has been made of the fact that President-Elect Trump claimed that women who undergo abortion procedures should face “some sort of punishment.” Considerably less has been made of the fact that our President-Elect, in a moment of epistemic humility, expressed that he did not know what he would do, though he believed something had to be done. (He later revised his position, suggesting that the performer of the abortion rather than the woman undergoing the abortion would “be held legally responsible.”)

I am worried about the futures of our bodies, as, I think, are many. That a Trump Presidency makes many feel fear is not a novel contribution. Nor will I be able to speak to the very many, and varied, ways our bodies may be compromised in and by The New America—be it through removal from the country (see especially the proposed “End Illegal Immigration Act”), removal from society (see especially the proposed “Restoring Community Safety Act”), or some other means (see especially the proposed “Repeal and Replace Obamacare Act”).

But, I am like President-Elect Trump in this way: Like him, “I don’t know.” I don’t know what to say about what will happen to our bodies or to our body politic. So instead, today, I will take this opportunity to point to one aspect of the changing face of access to reproductive technologies that has already become a battleground in the fight over women’s bodies and will, I suspect, take center stage in the debate over the right and the ability to choose in coming years.

II. Mifepristone at Home

As Phil Galewitz of The New York Times reported yesterday, The TelAbortion Study is “a small but closely watched research effort to determine whether medical abortions…can be done safely through an online consultation with a doctor and drugs mailed to a woman’s home.” According to TelAbortion, the study “aims to evaluate the use of telemedicine for providing medical abortion to women who have difficulty getting to an abortion clinic.” At present, the study is open only to women living in New York, Hawaii, Oregon, or Washington. The TelAbortion “involves all the same steps and procedures as a regular medical abortion, but you do them without going into an abortion clinic.” The procedure comprises nine steps, beginning with a “Video Evaluation with the study abortion provider” over “an encrypted, HIPAA-compliant videoconferencing platform,” involving extensive consultation concerning how to properly take the medication, and concluding with follow-up tests “to verify that the abortion is complete” as well as exit consultation with the study provider.

The study is funded and organized by Gynuity Health Projects, a nonprofit “research and technical assistance organization” the expressed mission of which “is to make reproductive health technologies more convenient, more acceptable, safer, and more widely accessible.” According to Galewitz, the study’s principal investigator, Dr. Elizabeth Raymond, suggested “that [the study] could encourage the F.D.A. to stop restrictions on mifepristone.”

TelAbortion Flow Chart
“TelAbortion Flow Chart” from Erica Chong’s article, “TelAbortion: A new direct-to-patient telemedicine abortion service in the USA.”

But, as Galewitz also points out (citing data provided by the Guttmacher Institute), even were the F.D.A. to lift its restrictions on the dispensation of abortion pills, there is the independent consideration that Alabama, Arizona, Arkansas, Idaho, Indiana, Kansas, Louisiana, Michigan, Mississippi, Missouri, Nebraska, North Carolina, North Dakota, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, and Wisconsin all “require that the clinician providing a medication abortion be physically present during the procedure,” meaning that safe access to medical abortion at home may not be available in any of these states anytime soon anyway. And, of course, many of these states are the same ones that have passed or have at least tried to pass other legislation aimed at limiting their residents’ access to abortions.

On the other hand, as Bill of Health contributor John A. Robertson suggests in his July 11 post, “Whole Woman’s Health and the Future of Abortion Regulation,” the Supreme Court’s recent decision in Whole Woman’s Health v. Hellerstedt [WWH] could lead (or, perhaps better: might have led) to expanded access to abortion through telemedicine.

[R]estrictions on use of telemedicine for prescribing abortion drugs to women in rural areas, which some states allow but others do not, may also be subjected to scrutiny in light of WWH.  If the ban puts a substantial obstacle in the way of access, but has little health justification given what nurse practitioners and PAs can now do, bans on such use of personnel may be found to be an undue burden.

Of course, what impacts WWH can have will depend, in part, on how it is treated by the courts going forward. So, while much concern regarding a Trump presidency has been focused on the question whether Trump will nominate a judge to the Supreme Court the appointment of whom could jeopardize Roe v. Wade, we should not lose sight of other decisions that also hang in the balance.

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