Following the U.S. Supreme Court’s ruling on June 24, the right to abortion would no longer be recognized nationwide. This is because it was nearly fifty years ago when it issued its landmark Roe v. Wade decision. This is likely to result in an increase in demand for abortion pills that are available via telemedicine visits. Experts say medication abortion will not necessarily be the most effective solution to the stringent upcoming abortion restrictions now expected to pass in conservative states.
WHAT IS A MEDICATION ABORTION?
Medication abortion is performed by taking mifepristone, also known as RU-486, followed by a second drug, misoprostol, in order to end the pregnancy rather than through surgery. The Guttmacher Institute, an abortion-rights advocacy group, reports that more than half of abortions in the United States are medication abortions.
DO THE FEDERAL GOVERNMENT REGULATE MEDICATION ABORTIONS?
Mifepristone was approved by the U.S. Food and Drug Administration in 2000, but until very recently, patients had to get it at a doctor’s office, clinic, or hospital. In December, the agency removed the permanent requirement that it must be dispensed in person by allowing patients to have online consultations with healthcare providers and receive the pills by mail, after easing those restrictions during the COVID-19 pandemic. Patients who live in remote areas without healthcare providers nearby, as well as women who can’t take time off from work or can’t get to clinics for other reasons, could receive abortions. Pregnant women can use the drugs through the 10th week.
DO STATES RESTRICT MEDICATION ABORTION?
Sure. Medical abortions have become a target for anti-abortion politicians and activists. Texas and Indiana ban medication abortions after seven weeks, and many other states have had their bans blocked by courts.
Currently, only 32 states allow physicians to prescribe abortion pills, and not other clinicians such as nurse practitioners. There are 19 states that require the dispensing clinician to be in the patient’s physical presence, effectively banning telemedicine.
WHAT IS THE IMPACT OF THE SUPREME COURT’S DECISION ON TELEMEDICINE ABORTION?
In the 13 states that had “trigger laws” before the Supreme Court’s ruling, new abortion restrictions came into effect immediately or soon after Roe v. Wade was overturned, and more are expected to follow after Friday’s decision in Dobbs v. Jackson Women’s Health.
The Guttmacher Institute predicts at least 26 states, including those with trigger laws, will pass comprehensive abortion laws. Such state laws have so far not distinguished between surgical and medication abortion, so they are expected to ban medication abortion entirely. Some will ban abortions almost completely, while others outlaw abortion at six weeks or 15 weeks.
In anticipation of the Supreme Court’s ruling, Minnesota senator Tina Smith introduced a bill that would ensure that telemedicine abortion is available in states where abortion remains legal.
IN A STATE WHERE MEDICATION ABORTION IS ILLEGAL, CAN THE PATIENT GET THE PILLS FROM AN OUT-OF-STATE PROVIDER WHERE IT IS LEGAL?
Dr. Shelly Tien gives an abortion-inducing medication to a patient at Trust Women clinic in Oklahoma City
In this illustration, misoprostol pills, used to end early pregnancy, are depicted
At Trust Women clinic in Oklahoma City, Dr. Shelly Tien administers an abortion-inducing medication to a patient
Misoprostol pills, which are used to terminate early pregnancies, are shown in this illustration taken on June 20, 2022. Reuters/Edgard Garrido/Photograph
It depends. Legal experts say it is illegal to prescribe the pills via a telemedicine appointment to a woman in a state where they are illegal.
“The law around telemedicine generally states that the location of the patient controls,” according to Amanda Allen, senior counsel at the Lawyering Project, an organization that represents abortion providers. Doctors who prescribe abortion pills to a patient in a state where they are illegal may lose their license in that state, or even face criminal charges, she said.
A woman who lives in a state that does not allow abortion could make a telemedicine visit, get medication mailed to an address there, and have abortion done in a state that allows it.
Occasionally, this may be less burdensome and cost-effective than traveling to a brick-and-mortar clinic in another state, she said, noting that patients traveling to other states have often had to wait weeks for appointments.
DO LAWSUITS CHALLENGING STATE RESTRICTIONS ON MEDICATION ABORTION CURRENTLY EXIST?
Definitely. Genentech, a company that sells mifepristone, has already challenged Mississippi’s restrictions on telemedicine abortions by arguing that they are “preempted” by the FDA, meaning that the federal approval of the drug overrules state legislation. The case, which is before the Mississippi federal court, has not been decided.
Previously, similar challenges have succeeded. Earlier this year, a federal judge ruled that a Massachusetts law regulating opioid drugs more stringently than federal law was preempted.
Merrick Garland, the U.S. attorney general, said in a statement that states “may not ban mifepristone based on disagreements with the FDA’s expert judgment about its safety and efficacy.”
Mississippi argues FDA approval cannot override the Supreme Court’s rulings granting states the authority to regulate abortions.
ARE ABORTION PILLS AVAILABLE IN OTHER COUNTRIES?
Sure. The number of women ordering pills online from overseas is increasing in states cracking down on telemedicine abortion.
Despite the illegality of the practice, the state has no effective way to police orders from foreign doctors and pharmacies.
(This story has been changed to refer to medication abortion as opposed to medical abortion.)