By Adrienne R. Ghorashi, Esq.
Last week, the Food and Drug Administration (FDA) suspended an in-person dispensing requirement for mifepristone for the duration of the COVID-19 pandemic, allowing patients to access medication abortion by mail.
Previously, the FDA REMS requirement mandated that mifepristone must be dispensed in person, forcing patients to travel to a clinic in order to pick up the medication. In light of the pandemic, the requirement would lead to unnecessary risks of COVID exposure for patients and providers, in addition to imposing logistical and financial burdens.
This FDA decision is the latest development in a battle that made its way to the U.S. Supreme Court earlier this year. In its first abortion decision since Justice Amy Coney Barrett joined the bench, the Supreme Court reinstated the in-person dispensing requirement after it had previously been blocked by a federal district court in Maryland due to the risks of COVID-19.
Advocates for abortion access are celebrating the FDA decision as a win for science and evidence-based policy rooted in a growing body of research on the benefits of medication abortion and telemedicine for abortion.
In its two-page letter on the decision, the FDA cited studies that demonstrate the safety and efficacy of mifepristone by mail, stating “the overall findings from these studies do not appear to show increases in serious safety concerns (such as hemorrhage, ectopic pregnancy, or surgical interventions) occurring with medical abortion as a result of modifying the in-person dispensing requirement during the COVID-19 pandemic.” While this means that many patients will now be able to receive medication abortion by mail, depending on where they live, others are subject to restrictive state laws that are still applicable.
State laws that excessively regulate medication abortion continue to hinder providers who would otherwise be able to dispense mifepristone by mail. In 13 states, laws require medication abortion to be administered in the physical presence of a provider despite being safe to take outside of a clinical setting, such as at home.
Recent studies have also shown that “no-test” or “no-touch” abortion protocols are safe and effective for patients, and have the potential to decrease wait times and costs typically associated with these requirements. Yet 11 states require a provider to conduct an in-person examination of the patient prior to administering medication abortion, and other ultrasound and waiting period requirements may apply.
While the use of telehealth increased in response to the pandemic and has shifted healthcare delivery models, abortion is often singled out from similar medical procedures, such as in seven states that explicitly ban the use of telemedicine for medication abortion.
Taken altogether, more than one-third of states have restrictive laws in place that limit the accessibility of medication abortion in contradiction to scientific evidence and medical expertise. During the pandemic, patients are forced to travel to a clinic just to pick up their pills, needlessly exposing themselves and others to the risks of COVID. Given that millions of individuals live more than an hour away from the nearest clinic (assuming they have access to a car or public transportation), and six states only have one abortion clinic left in the entire state, the logistical hurdles can be severe. The need to arrange childcare and time off from work further complicate the logistics of traveling to a clinic, considering that 35 states do not mandate paid sick leave for employees. Restrictions on the funding of abortion through Medicaid and private insurance can leave people scrambling to raise money for their care out-of-pocket. Delays in accessing abortion can further lead to increases in the associated costs, trapping individuals with low incomes and their families in a cycle of poverty.
The burden of navigating various legal restrictions and logistical hurdles falls hardest on communities negatively impacted by the pandemic due to loss of income, housing, social supports, and health care. To take full advantage of remote care for medication abortion, people need internet and phone access, and a home or private space in which to have their abortion. Existing structural barriers to health care, exacerbated by the pandemic, still mediate access and contribute to the deep racial disparities in reproductive health outcomes. Being unable to receive an abortion could mean that an individual risks pregnancy complications and poorer maternal and infant health outcomes — a risk that disproportionately affects Black women. Furthermore, the risks of COVID-19 have also disproportionately harmed Black and Latinx populations as a result of systemic racism.
While the FDA may have finally recognized the arbitrariness of restricting mifepristone in light of COVID-19, the majority of these barriers to healthcare have existed long before the pandemic — thus the urgent need to address these inequities will continue. Expanding options for medication abortion delivery, such as through a new tele-abortion program called “Abortion On Demand,” could help to alleviate some of the numerous challenges that rural and underserved communities currently face.
However, for those living in states with already precarious abortion landscapes due to overregulation and underfunding, the disparate harms associated with lack of accessible and affordable abortion care will remain a reality. Policymakers at all levels must commit to prioritizing abortion access beyond the pandemic as a matter of public health, and in recognition of its larger ties to racial and economic justice.
Adrienne R. Ghorashi, Esq. is a program manager at the Center for Public Health Law Research.
