By Rachel Rebouché
Before the end of 2021, the U.S. Food and Drug Administration (FDA) will reconsider its restrictions on medication abortion. The FDA’s decision could make a critical difference to the availability of medication abortion, especially if the Supreme Court abandons or continues to erode constitutional abortion rights.
Under that scenario of hostile judicial precedents, a broad movement for abortion access — including providers, researchers, advocates, and lawyers — will be immensely important to securing the availability of remote, early abortion care.
Last year, a federal district court enjoined the FDA from requiring patients to pick up the first of two drugs in a medication abortion, mifepristone, at health care facilities. The FDA had prohibited all mail order or pharmacy dispensation of mifepristone because it was characterized as risky and in need of monitoring. However, the consensus among experts, including officials at the FDA, is that mifepristone is exceedingly safe. Non-abortion drugs with more serious risks were not subject to the same rules. Indeed, mifepristone was the only one of the FDA’s 20,000 regulated drugs that had to be obtained from a medical center even though it could be used at home without medical supervision.
Soon after the district court’s decision, remote abortion care expanded alongside other forms of telemedicine, and new virtual clinics began offering “no-touch” abortions. Such abortion providers advise patients online, deliver medication abortions through supervised mail orders, and monitor patients through smartphone apps and 24-hour helplines.
Growth of virtual abortion care stalled in January 2021 after the Supreme Court stayed the district court’s order and restored the FDA’s regulation. After the 2020 election, however, the FDA voluntarily suspended enforcement of its in-person rule for the duration of the pandemic, and the agency is now reconsidering the restrictions based on evidence that remote abortion is safe and effective.
If the FDA decides to permanently remove some or all of its restrictions on medication abortion, virtual clinics will continue to operate and will thrive in many places. For example, Abortion on Demand is a provider that currently offers services in 20 states and plans to expand to 27 states by the end of the year. Early abortion services could become more portable and less expensive, as virtual clinics typically charge less than brick-and-mortar clinics.
Despite these signs of progress, the expansion of virtual care has faced significant limitations. First, 19 states prohibit telehealth for abortion, an extension of these states’ concentrated opposition to abortion in general. Five states explicitly ban teleabortion. A model statute on telehealth by the Uniform Law Commission contemplates exclusion of abortion from telehealth services, prescribing that “state statutes restricting or prohibiting the prescription of abortion-inducing medications…will continue to apply.”
Whether states can impose stricter standards on medication abortion than the FDA is currently being litigated. In the meantime, states concentrated in the south and midwest are inhospitable to virtual clinics. As a result, in places where abortion services are already scarce, patients must travel out of state or find other ways to get prescriptions. The costs of pursuing those options fall heaviest on people with low incomes and on people of color – populations that comprise a majority of abortion patients.
In the face of legal restrictions, groups like Plan C have provided greater information and thus access concerning online abortion. If / When / How has established a legal fund to support individuals who are threatened with prosecution for self-managed abortions contrary to state law.
Participation in telemedicine also depends on internet connectivity, connected devices, digital literacy, and other resources that entrench racial, income, and geographic disparities. Moreover, only patients who have uncomplicated and early pregnancies are candidates for teleabortion, and those patients are disproportionately wealthy and white. The resource limitations faced by abortion patients have required grassroots organizations like Yellowhammer Fund and the Mountain Access Brigade to offer funding, transportation, and private, inexpensive and accessible technologies.
These efforts represent coordinated, increasingly important strategies to overcome barriers to abortion access in the face of restrictive laws and Supreme Court decisions. People who live in states supportive of abortion rights will be able to end their early pregnancies at low cost and with fewer logistical hurdles. Those residing in hostile states will have to seek abortion care outside their home states because of legal restrictions and the limited numbers of abortion providers. Further on-the-ground innovations, outside the courtroom and across state borders, will be needed to meet future challenges to abortion access. And the support that the abortion-access movement offers, over the long term, might best illustrate the resilience of abortion rights.
Rachel Rebouché is the Interim Dean of Temple University Beasley School of Law and the James E. Beasley Professor of Law.