Illustration of cell phones and prescription pill bottles

Access as Equity: Efforts to Use Telemedicine to Expand Abortion Access

By Oliver Kim

I’ve written here before about areas where technology could play a role in providing access to complicated, controversial healthcare services. Earlier this year, I presented a forthcoming paper co-authored with a colleague on how technology can be used to provide greater equity in women’s health and how the law is being used to encourage such advances or block them. Given the political battles over women’s health, it should be no surprise that technology’s role in abortion access is under increasing scrutiny from lawmakers.

A medication abortion involves a two-step regimen: the woman first takes mifepristone, generally in a clinical setting, and 24 to 48 hours later, she takes misoprostol, generally in the privacy of her home. Recent research, though, suggests that women may not need to take mifepristone in a clinical setting: the World Health Organization revised its guidelines on whether the medications require “close medical supervision,” and a recent op-ed in the New England Journal of Medicine called on the Food and Drug Administration to revise its restrictions on mifepristone.

Given these findings, abortion providers have recognized that telemedicine could be utilized to expand access into areas where abortion services are limited due to geography, legal restrictions, or both. Since 2008, Planned Parenthood in Iowa has used telemedicine to overcome both provider shortages and geographic challenges: a physician can use video conferencing services to appear virtually at health centers across the state, reviewing a patient’s ultrasound and medical history remotely and providing counseling over a secure, private system. The majority of the medical literature finds that using telemedicine to provide medication abortions is just as safe and effective as if a woman met with a clinician in person.

As we discuss in our paper, when technology expands access to care that is politically controversial, policymakers may use the law to restrict such technological advances. In response to this use of telemedicine, states hostile to abortion began passing bans. When Iowa’s medical board attempted to restrict such a use of telemedicine, the Iowa Supreme Court struck down the board’s regulation, holding that it would be an undue burden on a woman’s right to an abortion. Some hailed the Iowa decision as groundbreaking and hopefully influential on other state supreme courts. (Later that same year, the U.S. Supreme Court in Whole Woman’s Health would strike down two Texas statutory restrictions on abortion providers as undue burdens on a woman’s right to an abortion.)

What I find interesting—and what came out after we submitted our paper—is how telemedicine and abortion are being treated in neighboring Kansas and how it reflects the larger legal debate over these issues. In 2011, Kansas first attempted to ban telemedicine abortions by requiring a physician to be physically present when administering mifepristone, thus eliminating the value of telemedicine. Subsequently, the Kansas state legislature modified the ban in 2015 by clarifying that a physician would not need to be physically present in a medical emergency; in 2018, the legislature passed explicit language in the Kansas Telemedicine Act that nothing in this new telemedicine legislation authorized the use of telemedicine for abortion. However, a Kansas court enjoined the Kansas attorney general, the only defendant in this line of cases, from enforcing this provision or the in-person requirements under the court’s prior 2011 decision.

Even more remarkable, in the same state that elected Sam Brownback governor twice, the Kansas Supreme Court recently held in Hodes & Nauser v. Schmidt that the Kansas constitution provided a fundamental right to an abortion.

Thus, it may seem surprising that in a subsequent decision, a district court refused to grant a preliminary injunction for Trust Women, a Wichita-based abortion provider, to prohibit the state from enforcing the telemedicine abortion restrictions. Part of this new case turns on standing as well as recognizing that the prior line of telemedicine-abortion cases only enjoined the state attorney general and was silent on whether the state health department or county attorneys were similarly enjoined from enforcing the telemedicine-abortion bans.

Further, the court also turned part of its decision on whether Trust Women would suffer an irreparable injury: the court found that there was insufficient evidence of an injury because Trust Women still required patients to be present physically at its Wichita clinic in its telemedicine pilot, and Trust Women had taken no preliminary steps to open clinics in remote rural parts of the state. Indeed, the court decried the prior telemedicine-abortion rulings as “a growing procedural backwater” and suggested that the court needs to be able “to resolve the underlying merits of the telemedicine abortion issue,” necessitating that “the parties… present additional evidence and more probing legal analysis than has occurred at this early stage.”

While the district court has significant discretion in considering a request for a preliminary injunction, it does feel troubling that the court suggests that Trust Women should have invested time and resources into a telemedicine strategy that might be illegal before seeking relief. In light of the bans and the legislature’s hostility, it seems unlikely that Trust Women could have raised the funds necessary to create a telemedicine infrastructure and build clinics in remote rural areas. After all, although the Kansas Supreme Court’s decision was not on the telemedicine restrictions, it seems unlikely that they would survive a strict scrutiny review under Hodes since the state will bear the burden of justifying the law. Moreover, it’s also likely that the restrictions might not survive review under Whole Woman’s Health given the weight of medical evidence that suggests singling out abortion from all other services provided by telemedicine, is suspect.

This is also playing out on the national stage as the Fifth Circuit in June Medical v. Gee seemingly sent a direct challenge to Whole Woman’s Health where the Fifth Circuit upheld Louisiana abortion restrictions that were basically identical to the Texas restrictions that were struck down. How June Medical is ultimately resolved will have ramifications for telemedicine in this particular context.

While medical evidence demonstrates that telemedicine is a safe means of providing medication abortion (as well as providing other benefits for women such as privacy), there are of course those that dispute this notion. One could see a conservative court finding that a telemedicine ban is not an undue burden: under the Trust Women preliminary injunction ruling, women in rural areas are no worse off than they were before since they never had access to abortion via telemedicine to begin with. Further, if waiting periods and similar barriers are upheld post-Whole Woman’s Health, this could put rural access even further at risk. In other words, a woman still has access to abortion, just not via telemedicine. Of course many such arguments could be applied to any telemedicine application, so the question turns back again: Why place restrictions just on abortion services?

In so many areas, though, telemedicine has been hailed as a way to increase access for all patients. The issues arise in the same areas where there have always been strong opinions, but the evidence and the trend lines are overwhelmingly in favor of expanded telemedicine access. The law should follow.

Telemedicine. Image of a patient speaking to a doctor on a mobile phone.

Telemedicine Adds a Wrinkle to Latest New Mexico Legislative Debate on Aid in Dying

Then-Senate Majority Leader Bill Frist was roundly criticized in 2005 for declaring that Terri Schiavo, a Florida woman who had gone into cardiac arrest at age 26, was “not somebody in persistent vegetative state” after viewing videotapes of her condition. The tragic situation is mostly remembered as a low point for federalism and end of life policy.

But there is another issue stemming from the debate that ought to be considered. Although Frist backed away from calling his review of videos an actual diagnosis, it is interesting to think how the use of technology to make a remote determination of a patient’s condition has changed since Frist made his assessment.

Indeed, over a decade later, a New Mexico bill is proposing the opposite: allowing individuals with a terminal illness to utilize telemedicine consultations to seek aid to end their lives. It is not surprising that New Mexico lawmakers would consider telemedicine as part of their proposal. Given its geography, the state has embraced telemedicine as a means of expanding access, and innovative workforce initiatives such as Project ECHO were birthed there.

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A data set that looks like America

By Oliver Kim

May marks the annual Asian American and Pacific Islander Heritage Month, which recognizes the history and contributions of this diverse population in the United States. Accounting for that diversity though is one of the challenges facing the Asian American-Pacific Islander (AAPI) community: for example, the Library of Congress commemorative website recognizes that AAPI is a “rather broad term” that can include

all of the Asian continent and the Pacific islands of Melanesia (New Guinea, New Caledonia, Vanuatu, Fiji and the Solomon Islands), Micronesia (Marianas, Guam, Wake Island, Palau, Marshall Islands, Kiribati, Nauru and the Federated States of Micronesia) and Polynesia (New Zealand, Hawaiian Islands, Rotuma, Midway Islands, Samoa, American Samoa, Tonga, Tuvalu, Cook Islands, French Polynesia and Easter Island).

Understanding that diversity has huge policy and political implications, particularly in health policy. Read More

World Trade Month: Trade’s impact on domestic drug prices

By Oliver Kim

Happy World Trade Month! While health policy is often seen as something particularly domestic, trade can have an impact on health policy here at home.

Just a day before President Trump’s speech outlining the administration’s approach to rising drug costs, the Pharmaceutical Research and Manufacturers of America (PhRMA) declared May as a time to “celebrate the many American companies exporting products around the world.” However, PhRMA also warned that “Americans should not subsidize the medicine costs in other wealthy countries.”

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Wishes at the end of life: comparing the right to try and right to die

By Oliver Kim

After an initial procedural hiccup, the House of Representatives passed a modified version of a federal “right to try” bill, legislation that would allow pharmaceutical companies to bypass the federally-prescribed clinical trial process to allow terminally ill patients to try experimental drugs. Similar legislation passed the Senate as part of a horse-trade in order to allow the swift passage of the FDA user fee reauthorization before that program expired. A majority of the states have passed right-to-try legislation, which is largely ineffective given federal preemption.

Much has been written about the ethical and legal questions surrounding the right to try as well as the political forces behind it. Proponents argue that the right to try is based on notions of mercy, compassion, and autonomy.

What has interested me about this debate is that often those same notions are used to justify the “right to die,” or aid in dying usually for terminally ill patients. I’ve written (and will be publishing a longer piece) and will be speaking about this question and if there are lessons that proponents of the right to die can learn from the political success of the right-to-try movement.

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Slightly Hazy: An Insurer’s Emergency Room Policy Draws Congressional Scrutiny

By Oliver Kim

Last year, I had the good fortune to present at the Petrie-Flom Center’s conference on transparency and I started with an anecdote about a congressman who decided to wait rather than take his son immediately to the emergency room after he injured himself. The congressman assumed his son only had a sprain, but he had actually broken his arm. So why the wait? Because of a difference in his co-pay. In an interview, the congressman argued for policies to push consumers to understand—and be exposed to— healthcare costs in order to make better decisions about their care: “Way too often, people pull out their insurance card and they say ‘I don’t know the difference or cost between an X-ray or an MRI or CT Scan.’ I might make a little different decision if I did know (what) some of those costs were and those costs came back to me.”

The congressman’s policy prescription is becoming reality: last year, the largest Blue Cross Blue Shield plan Anthem announced a new policy where it would deny coverage for care provided in an emergency room that was later deemed non-emergent (except in certain circumstances). It seems a far cry from simply charging an ER co-pay, but Anthem argues it has seen a rise in non-emergency care being provided in emergency rooms. How are patients supposed to know if the ache or pain they are experiencing is not an emergency? Apparently there is a spreadsheet of over 1,900 ailments that Anthem considers non-emergent.

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