Many patients in conservative states that have passed strict abortion bans have turned to abortion pills as a way of achieving the same goal.
Now, however, the Supreme Court has plans to change or substantially reduce or reverse this trend. Roe V. Wade, the pills are increasingly in conservative lawmakers’ crosshairs, too.
According to data from the Guttmacher Institute (a group supporting reproductive rights), the majority of US abortions were performed by medication abortions in 2020. It was the first time abortion pills had been approved in America since 2000 when the Food and Drug Administration (FDA) approved mifepristone.
Medication abortion advocates view it as a way for state laws to be circumvented. Telehealth startups focused on reproductive health are hoping to help expand access by mailing abortion pills directly to people’s homes or post office boxes. Abortion opponents view the pill as a threat and they are adding more criminal sanctions.
This new law, along with other structural hurdles such as poverty and lack of internet connection, is making it more difficult to access medication abortion in the potential post-abortion world.Roe world.
“Medication abortion is going to be critical,” says Elizabeth Nash, who tracks state abortion legislation for the Guttmacher Institute. “The reality that we are expecting is that there will be more gestational age limits on abortion across the country. This means some people may travel to other states with abortion access. For others, however, it is possible to obtain abortion via the internet. And so ensuring that there is at least some availability of care is incredibly important.”
Abortion is now subject to new restrictions and penalities
Traditionally, someone looking for a procedural abortion must make an appointment at an abortion clinic, take time off work, travel to the clinic (often more than once), and potentially face protesters or at least other people in the clinic’s waiting room. These barriers are removed by medication abortion. The two-drug regimen can be taken at a patient’s home, or any other location they choose, and once they obtain the pills, they don’t need to wait for an appointment time or interact with other people when taking the drugs.
As the coronavirus epidemic increased the need for telemedicine, FDA loosen its requirements that the FDA allow mifepristone to be given in person. The FDA made the change permanent by making it possible for patients to get their pills through telemedicine or mail-order pharmacies.
The shift was loved by supporters of abortion rights, but it also attracted the attention and support from lawmakers and anti-abortion activists. Sending abortion pills through the mail made them “more complicated for states to police,” says Michele Goodwin, a law professor at the University of California, Irvine and author of “Policing the Womb: Invisible Women and the Criminalization of Motherhood.”
“What’s particularly destabilizing and upsetting for some of the legislators who want to go after medication abortion is that there aren’t obvious targets,” she says.
Many laws and regulations that target providers are opposed by mainstream abortion advocates. They do not intend to punish women who decide to have an abortion. This strategy is made more complicated when the patients are not able to access state-licensed providers and order medication from another country. 19 states have already banned the sending of abortion pills via telehealth and by mail. Americans United for Life and Susan B. Anthony List are major anti-abortion groups that have declared restricting access to the pills a top priority for this year. In the three-months leading up to 2022, more than 100 restrictions were imposed on 22 state medication abortions by conservative legislators.
Some states anticipate that the Supreme Court might at most weaken. Roe V. WadeThey are also passing complete abortion bans, which apply to surgical and medication abortions. Many of the new bills take novel approaches, such as Texas’ SB 8, which encourages private citizens to enforce a ban on abortion after about six weeks by offering at least $10,000 to individuals who sue anyone that helps someone obtain an abortion.
Texas passed another law, making it a crime for anyone to mail abortion pills. The penalty was a $10,000 fine plus time in prison. Oklahoma has passed a complete abortion ban, making violating it a felony punishable by up to 10 years imprisonment and a fine of $100,000. The state is currently advancing its own Texas-style bill. Missouri legislators have proposed bills to treat the sending of abortion pills as drug trafficking. They also want to restrict people who leave Missouri to get abortions. Tennessee legislators are pushing a bill which would ban mailing abortion pills. It also includes additional provisions that can be punished with a felony or a $50k fine. And in Kentucky, legislators passed a law creating a new certification program for abortion pill providers that would list their names publicly, and adding a “complaint portal” where people can anonymously report potential violations.
Many lawmakers are concerned about speed and potential complications when patients obtain abortion pills. Abortion providers claim that pills are safer than Viagra or Tylenol. Telemedicine has also been shown to be less safe.
“These medications are so extremely safe that the greatest risk is really the legal risks or the risk of being prosecuted by ordering these pills,” says Ushma Upadhyay, an associate professor at Advancing New Standards in Reproductive Health, a research group at the University of California, San Francisco, who recently published a study in JAMA Internal MedicineThe study found that abortion medication was safe and effective even without the need for in-person testing.
That legal risk was on display this past week when a young woman in Texas was arrested and charged with murder after the local sheriff’s office said she caused “the death of an individual by self-induced abortion.” The county’s district attorney has dropped the charges and said the situation was “not a criminal matter”—but not before the woman spent days in jail and reproductive rights groups raised money to pay her bond.
Goodwin and advocates for reproductive rights say as restrictions rise, the most vulnerable people will be those of color, rural residents, and people without support systems that allow them to access abortions.
Goodwin said that Texas’s incident showed that there is no limit to what can be done. This was similar to the Civil War Jim Crow laws. “These are very innovative ways of creating a second class citizenship,” she says. “So slavery falls away, Roe falls away and there’ll be then these creative ways to further harness both criminal law and also harness harness civil penalties to chill people’s ability to terminate pregnancies, and also to chill other people who would want to aid and support and help them.”
New laws are complicating the lives of services who send pills via mail, just as they have for clinics that can be visited in-person. A European service, Aid Access, can mail abortion pills anywhere in the U.S. to anyone. It saw a significant spike in demand after Texas’ SB 8 went into effect, but requests then leveled off.
Telehealth providers based in the U.S. like Hey Jane, Carafem and Choix started sending pills out to customers after the FDA relaxed its regulations during the pandemic. But they cannot send the drugs to any state where it’s legal. While that means they can’t legally mail pills to a state like Texas, providers are thinking about ways that telemedicine can still shorten travel times for people who want to access their services.
According to Elizabeth Raymond (senior medical associate, Gynuity Health Projects), a telemedicine program called TelAbortion, that was operated in accordance with the FDA prior to the pandemic, patients could travel across state lines for its services. A patient in Tennessee might drive across Georgia’s border and get the abortion pills there. She could then go back home.
“This telemedicine approach may open up options for patients who can’t physically go a very long distance that would require an airplane flight to receive the service, but they can just go somewhere where it’s legal and receive the service by telemedicine from that place,” Raymond says. “We didn’t have a large volume of this. But in the future, what we want to try to do is figure out how to make that more feasible.”
Startups that offer abortion pills now have ideas on how to make this happen. Hey Jane serves New York, California. Washington, Illinois. Colorado. New Mexico. Kiki Freedman, CEO of the company, says that Hey Jane chose these states because they allow abortion access. They are also likely to have more patients from those states as there is less restriction elsewhere. Guttmacher estimates that California could see an almost 3,000% rise in abortion-related deaths if the Supreme Court overturns Roe. Illinois however would witness a near 9,000% increase.
“We do not view medication abortion as a panacea,” Freedman says. “But given the situation that we’re in, I would say the main role that we see ourselves playing is helping support access within the states that are going to be absorbing a lot of that demand. There just needs to be more availability of care providers there and I think telemedicine is a good way to make that happen.”
Now that it’s been one year since the Biden Administration’s FDA initially loosened regulations around the abortion pills, Hey Jane is considering its plan for a more restrictive future. Data released by Hey Jane on Tuesday showed that patients valued comfort, privacy, and ease of use as well as cost when selecting Hey Jane. Abortions in clinics can cost between $500 and $1,000, whereas Hey Jane’s services cost $249 and other telemedicine providers are also often cheaper than in-person options.
Hey Jane’s typical patient is 29 years old and six weeks pregnant when they complete their intake forms on the company’s website; they typically complete the forms within two days of getting a positive pregnancy test. This would put that average patient already at the edge of Texas’ abortion law if they were in that state, but the speed with which patients are getting prescribed pills could help people who are otherwise seeing long wait times at clinics in surrounding states already overwhelmed with patients. Recently, 90% of Hey Jane’s patients have been getting prescriptions confirmed in 24 hours, Freedman says.
Still, these companies don’t work for everyone. Upadhyay has begun a study with more than 3000 patients who tried telehealth abortion. She says preliminary data show that patients in underserved areas are not often aware of the options. With more states adding new restrictions all the time, she expects to see abortion pills playing an even bigger role—both through established channels and patients obtaining the medications on their own.
“This medicine is safe, people can use it on their own,” Upadhyay says, “but patients really do have the right to the care and comfort that comes from having a local provider support them.”
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