By Mary Ziegler
The pandemic — and the stay-at-home orders it required — finally shifted the movement’s focus to abortion access, rather than abortion rights, as exemplified by its emphasis on medication and telehealth abortion.
Public health professionals, who less often had been on the front lines of the abortion conflict, took a more prominent role in fighting rules that required patients to choose between access to abortion and an increased risk of contracting COVID-19. As important, the pandemic improved distribution networks that could ensure access to both medication abortion and contraception, either legally or on the black market.
Medication abortion involves two pills, mifepristone and misoprostol. Since the FDA approved mifepristone in 2000, it has been subject to strict regulations, including a Risk Evaluation and Management Strategy (REMS) that requires patients to be face-to-face with doctor when receiving the pill. The REMS creates hurdles that make it cumbersome for any professional outside an abortion clinic to prescribe the drug — and makes it impossible to buy the pill from a retailer or pharmacy.
During the late 1980s and early 1990s, mifepristone (often called RU 486) was a central concern for progressive movements; Larry Lader, a prominent activist, made it his goal to bring mifepristone to the U.S. market. Activists engaged in civil disobedience, lobbied Congress, and challenged regulations on the drug. But eventually, medication abortion became a less central organizing issue. Because the REMS made it difficult to take abortion medication without visiting a clinic, abortion restrictions also limited access to RU 486. As important, abortion foes — who argued that medication abortion was unsafe and unproven — seemed to frighten off patients, who initially used it at relatively low rates.
During the COVID-19 pandemic, medication abortion again became a central site of contestation. The American College of Obstetricians and Gynecologists challenged the FDA in-person requirement, and other public health leaders spoke out against the requirement. When a district court suspended the requirement, virtual clinics like Choix, Hey Jane, and Just the Pill began offering virtual clinics. Although the Supreme Court later reinstated the in-person rule, the Biden Administration lifted it, at least during the course of the pandemic, and online clinics spread.
The focus on medication abortion seems likely to last past the COVID crisis. Since 2018, red state lawmakers have acted on the assumption that a conservative Supreme Court majority would reverse Roe v. Wade. Roughly half the states would likely ban all or most abortions if Roe were gone. As reproductive justice organizers began preparing for the idea of a post-Roe America, the pandemic moved up the timeline for a viable approach to telehealth abortion. For years, activists of color have questioned why reproductive rights organizers paid so little attention to access to abortion. Finally, it seems, access is at the top of the agenda.
But the pandemic has revealed the ongoing challenges facing an access-centered reproductive justice program. The more the conflict focuses on medication abortion, the more central health professionals are to reproductive justice organizing. Historically, some medical organizations, like the American College of Obstetricians and Gynecologists, have reliably supported the idea of abortion rights, but other groups mostly remained on the sidelines. Supporters of abortion rights surely welcome the support of organizations like the American Medical Association. Yet the movement has to avoid overly medicalizing the issue — or erasing the people of color who are and will remain most affected by abortion bans and restrictions.
As important, as new modes of protest emerge, reproductive justice organizers have to learn to rely less on the courts. For even as abortion-rights supporters invested more in access issues, movement leaders often relied on litigation to guarantee abortion access — a strategy that seems to be on borrowed time. The Supreme Court recently agreed to hear a case that many expect to gut or reverse Roe v. Wade. Asking the courts to expand or even preserve access to telehealth abortion seems likely to backfire.
As the reproductive justice movement takes stock of the changes wrought by the pandemic, advocates will see that a revolution in organizing is underway — toward a movement that is more nimble online, better integrated with medical elites, and more invested in questions of access. But as the litigation around medication reminds us, that revolution is fundamentally incomplete.
Mary Ziegler is the Stearns Weaver Miller Professor at Florida State University College of Law and the author of Abortion and the Law in America: Roe v. Wade to the Present (Cambridge, 2020).