With a milestone case pending before the Supreme Court, federal regulatory changes, and hundreds of antiabortion bills in statehouses, the always-polarizing battle over abortion has entered one of its most turbulent phases ever. And the decades-long fight has an added dimension due to the pandemic: Telemedicine and the internet have made medication abortion more available.
The U.S. Supreme Court, with three new justices nominated by then-President Donald Trump, has agreed to hear a Mississippi case that poses a direct challenge to Roe v. Wade, the landmark 1973 case that recognized a constitutional right to choose abortion. The high court’s decision in Dobbs v. Jackson Women’s Health Organization, expected in mid-2022, could dramatically reduce access to abortion.
The Food and Drug Administration, meanwhile, is considering whether to permanently lift restrictions on abortion pills that were suspended because of the pandemic. Abolishing or reducing those controls could dramatically expand abortion access.
Against this backdrop, more than 500 antiabortion bills have been introduced just this year in state legislatures across the country, according to Americans United for Life. Few such bills wind up being passed and enacted; Pennsylvania’s Democratic Gov. Tom Wolf, for example, has vetoed every bill the state’s Republican lawmakers have passed. But both sides in the bitter battle recognize it would be up to states to decide whether to allow abortion if the Supreme Court’s conservative majority further undermines or even overturns Roe.
States were the arbiters before 1973, and in some cases, for years afterward. While New York decriminalized abortion three years before Roe, many states openly defied the ruling, and some, such as Pennsylvania, tried to circumvent it by imposing burdensome requirements. (That led to the landmark 1992 case, Casey v. Planned Parenthood, in which the high court ruled that states may not impose an “undue burden” on women.)
But in the internet age, the dynamics are different, said public health researcher Elisa Wells, who cofounded Plan C, a website that rates international online suppliers of abortion pills.
If Roe’s legal framework is gone, then “in very restrictive states, access would be totally cut off and clinics would shut down,” Wells said. “That would create a huge market for abortion pills through alternative means. The good news is that suppliers are out there.”
The pandemic effect
In 2000, when the FDA made the controversial decision to approve mifepristone, it imposed stringent safety requirements on the abortion-inducing pill: The drug could be dispensed to patients only by specially certified health-care providers, and only in person in clinics, hospitals, and medical offices — not in pharmacies or through the mail like most prescription drugs.
Medication abortion — mifepristone followed by a drug that triggers uterine contractions — now makes up about 40% of all U.S. abortions, despite the hurdles and the fact that the method is approved only up to 10 weeks of pregnancy. The most common in-clinic abortion, which uses suction, can be done up to 16 weeks.
When the pandemic hit, turning every medical appointment into a potential COVID-19 exposure, the Trump administration’s FDA was pressured to lift the restrictions.
Two months ago, the FDA, now part of President Joe Biden’s administration, made a concession. During the public health emergency, the agency’s website said, patients would be allowed to get mifepristone without showing up in person; that opened the door to telemedicine. The pills could be sent in the mail by the prescriber or a mail-order pharmacy.
Last month, the FDA said it is conducting a full review of the restrictions. That revelation came in court papers filed as part of a long-running ACLU lawsuit challenging the rules.
“The evidence is crystal clear that these restrictions provide zero safety benefit while severely burdening patients’ ability to access care,” ACLU staff attorney Julia Kaye said in announcing the news.
The FDA’s review is not a public process — no public meetings or opportunity for public comment — and it has no deadline. However, the FDA and the ACLU asked the judge to pause the litigation until Dec. 1 in light of the review.
In its Supreme Court case, Mississippi is seeking to outlaw abortion after 15 weeks of pregnancy. Under Roe, abortion may not be banned until the fetus can survive outside the womb — about 24 weeks. Other majority-Republican states, including Texas, South Carolina, and Oklahoma, want to go even further, outlawing abortions after six weeks.
Recognizing the growing importance of the medication method, abortion foes have championed legislation aimed at curbing access. Nineteen states now require the clinician to provide abortion pills in person, effectively making it illegal to use telemedicine to see the patient and prescribe the pills, according to the Guttmacher Institute, a research center that supports abortion rights. Republican lawmakers in Pennsylvania last year passed a bill supporting telemedicine, but it excluded the prescription of drugs such as mifepristone that have extra safety restrictions; Wolf vetoed it.
Amid the legal and regulatory wrangling, demand for medication abortion, and efforts to meet that demand, are growing.
Numerous international websites ship abortion pills — without a prescription or any medical oversight — to women who “self-manage” the termination in secret. Wells cofounded Plan C to support such women by providing basic information and rating the websites on product quality, price, shipping, and more.
Aid Access, a mail-order abortion-pill service for U.S. women set up in 2019 by the Dutch physician and activist Rebecca Gomperts, defied an FDA order to cease and desist and instead filed a complaint against the agency in federal court.
A study of more than 57, 000 people in all 50 states who requested pills from Aid Access between March 2018 and March 2020 found, unsurprisingly, that women in states where an abortion is difficult, if not impossible, to get are far more likely to resort to doing it on their own. States with the highest rate of requests were Louisiana and Mississippi, according to the study in JAMA Network Open.
“The people who are looking for abortions will not just suddenly say: ‘Oh, I guess it’s illegal now, so I won’t get one,’” Abigail Aiken, a University of Texas researcher who led the study, told Politico.
Kirsten Moore, who leads the Expanding Medication Abortion Access project, put it more simply: “Needs must, right?”