What’s next for virtual abortions post-Roe
How does virtual abortion care work?
Providers typically prescribe two pills — mifepristone and misoprostol — through virtual visits. They are often sent to patients by post. Mifepristone blocks a pregnancy-supporting hormone, while misoprostol causes uterine contractions.
Abortion rights advocates say the virtual option reduces barriers to entry, such as the need to travel to a clinic, which can be expensive and time-consuming.
When did abortion medication become available through the mail?
Abortion medications had to be picked up in person until 2021, when the FDA suspended enforcement of the requirement due to the Covid-19 pandemic. Last December, the FDA permanently repealed those requirements, a move protested against abortion rights activists who complained it endangered women’s health.
Medicated abortions have become more common over the past two decades, accounting for more than half of the abortions in the US by 2020, according to the Guttmacher Institutean advocacy and research group for abortion rights.
Are the pills safe? How well do they work?
Medical experts say virtual abortions are safe and effective. In 2016, the FDA gave the green light to Gynuity, a not-for-profit research group, to conduct a multi-year study on teleboration, linking 1,300 women in 13 states to drug abortion. This study, which found that virtual abortion was safe and effective, was one of the data sources the FDA considered in its decision to suspend personal requirements during the pandemic.
In addition, groups requesting the FDA to lift its release restrictions submitted studies showing that the medication was about 95 percent effective at terminating pregnancies with fewer than 1 percent complications.
another study found side effects in less than 0.2 percent of telemedicine patients and about 0.3 percent of in-person patients.
However, the pills have limitations. They are only FDA-approved for the first 10 weeks of a pregnancy, so many people may not realize they are pregnant during that time.
Although surgical abortion is slightly more effective than drug abortion, show studies the safety profile is roughly comparable.
How does the Roe decision change access to virtual abortion?
Access to telemedicine abortion is subject to state laws. Before roe deer, 19 states have already banned the use of telehealth for abortion, according to the Guttmacher Institute† More could do this with Roe’s But they’re more likely to just ban abortion altogether rather than just restrict telemedicine abortion, said Greer Donley, a law professor at the University of Pittsburgh.
If states prohibit or restrict abortion afterroethat would also cover telemedicine abortion.
“Telehealth will be available in the states that want to protect abortion. And it won’t be legally available in the states that want to ban abortion,” said Laurie Sobel, associate director for women’s health policy at the Kaiser Family Foundation.
Abortion is now illegal, will soon be illegal or possibly illegal in 16 states.
Will the state’s abortion bans prevent people from having a drug abortion via telehealth?
People won’t stop getting virtual abortions, experts say, although it can get more cumbersome and risky.
Experts say people will likely travel across state lines to access telehealth services. That could mean patients leaving their state and making virtual appointments in a car in other states or sending the pills to a post office box at the state line.
Patients can also turn to groups such as Austria-based Aid Access, which offers online consultations and ships pills to all states. Because it is internationally based, legal experts say it would be difficult for states that ban abortion to enforce their laws against groups like Aid Access.
“The idea that it could affect groups abroad is much harder to imagine,” Sobel said.
Aid Access has seen a surge in interest since POLITICO first reported draft SCOTUS advice in early May, particularly for “pre-provisioning” the medication, or getting the pills now in case they’re needed later.
How are blue states trying to expand access for out-of-state patients who want an abortion?
Democratic lawmakers and governors in states like New York and California are trying to make their states safe havens for those seeking abortions by funding abortion access funds.
A number of states also want to protect clinicians from civil and criminal liability for out-of-state care for patients through telehealth, with Connecticut Gov. Ned Lamont, a Democrat, signing such protection into law just days after POLITICO issued a draft opinion from Judge Samuel Alito.
Linda Prine, a primary care physician and abortion physician in New York, urged state lawmakers to enshrine liability protections in law for clinicians who provide telemedicine in New York across state lines. Those weren’t passed until the legislative session ended in early June, and proponents are now urging Governor Kathy Hochul, a Democrat, to take action.
“There are some doctors like me who are planning to offer telemedicine abortion across state lines if we can,” Prine said.
It’s unclear whether providers will be able to handle demand out of state, Prine said. Whether or not they can depend on how many states adopt liability protections for abortion providers, Prine said.
How will some red states handle access?
Most efforts to target abortion access have focused on providers, not people undergoing abortions. Sue Swayze Liebel, state policy director for anti-abortion rights group Susan B. Anthony List, said states will focus on drug companies and groups that offer virtual abortions, not individuals undergoing abortions.
Privacy and legal organizations, virtual abortion groups and abortion rights advocates fear law enforcement could use broad information warrants, such as Google searches and phone location data, to find people seeking abortion care. Meanwhile, telehealth abortion groups are strengthening their privacy protections.
Some states could penalize people who travel to other states for legal abortions and return to their home states, said Mary Ziegler, a professor at Florida State University College of Law and an expert on the legal battle over abortion.
“The easiest people to enforce it are patients who do these searches on their phones or laptops,” Ziegler said. “States at the moment are saying … that they are not going to punish patients, but they will find that it would be easier to punish patients and therefore may eventually decide to change their mind on that subject.”
Many of the looming legal battles are expected to revolve around abortion pills, raising a number of new issues, including whether states can punish individuals for having abortions in other states.
“It’s just really, really hard to say how it’s going to end,” Donley said.
What is the FDA’s role in this?
Pharmacies are still waiting for FDA guidance to become certified for distributing medication abortion, which could come later this year. The FDA could also remove restrictions on mifepristone, requiring prescribers and distributors to be certified. It could also go further and use its powers to argue that the states can’t regulate it more strictly than the FDA because federal law overrides state law, Donley said.
The FDA is “theoretically the primary regulator” of abortion medications, and some would argue that it is the sole regulator, Donley said.
“We don’t really have a guide to how this will pan out, because the states are essentially trying to ban a drug, at least for the use of abortion, that’s FDA-approved,” Sobel said.
The FDA could also make the pills available without a prescription, although that may take decades, Donley said in a POLITICO Magazine piece along with two other law professors.
Ruth Reader contributed to this report.