The Biden Administration is removing restrictions on mailing abortion pills during the COVID-19 pandemic, a reversal from the Trump Administration’s policy that marks a new phase in the national debate over abortion rights.
The move temporarily changes longstanding Food and Drug Administration (FDA) rules governing mifepristone—one of two drugs used to terminate early pregnancies—that required patients to pick up the pills in-person from a medical provider. Acting FDA Commissioner Janet Woodcock sent a letter to the American College of Obstetricians and Gynecologists (ACOG) and the Society for Maternal-Fetal Medicine on Monday saying that her agency reviewed recent evidence and found that using telemedicine to provide abortion pills would not increase risks and would help patients avoid potential exposure to COVID-19.
The change only lasts through the public health emergency, and the FDA has not said how it will handle the requirement after the pandemic. But abortion pills have become the latest front in the heated battle over reproductive rights in the United States, and these medication abortions will continue to animate both sides of the issue even after the COVID-19 crisis recedes. As conservative states have passed hundreds of laws in recent years restricting all aspects of how people can obtain abortions, demand for the more convenient abortion pills has increased. Now as activists on all sides watch to see whether the conservative Supreme Court will curtail or overturn Roe v. Wade, looser rules around medication abortion could expand access far beyond traditional abortion clinics.
“Access to medication abortion is going to be really significant. Because if people in states where abortion is illegal can still readily get access to illegal but legal elsewhere medication, it’ll be very hard for states to enforce the laws,” says Mary Ziegler, a Florida State University law professor who studies abortion. “It’s important in the short term, but it’s also very important in the longer term when you’re imagining what a post-Roe landscape would look like.”
While the issue has received more attention over the past year due to COVID-19, the debate around medication abortion has been simmering for much longer. The FDA first approved medication abortion in 2000, and the pills have grown in use over the years. By 2017, about 40% of patients in the U.S. chose medication abortion, according to the Guttmacher Institute, a research organization that supports abortion rights. The FDA requires mifepristone to be dispensed in health clinics or hospitals, but reproductive rights advocates, doctors and medical professional groups including ACOG have said for years the restriction is medically unnecessary. Now they are hoping Biden’s FDA could permanently change the requirement.
Conservative groups and state lawmakers have already launched efforts to curb the pills’ expansion, with bills to ban or otherwise restrict the medication introduced in more than a dozen states so far this year. A state court recently blocked a ban on telemedicine abortion in Ohio, but Montana’s governor is expected to sign a similar bill soon. Others are making their way through legislatures in Alabama, Arkansas, Indiana, Iowa, Maryland, Oklahoma, Texas, Wyoming and West Virginia. Many of these bills have been championed by a group of conservative organizations led by the Students for Life of America and Susan B. Anthony List, which supports politicians who oppose abortion. Students for Life of America is also lobbying for bills that would ban abortion pills outright in several states, and plans to launch a documentary series this spring featuring Charlotte Pence Bond, the former Vice President’s daughter, aimed at raising more concerns about medication abortions.
Democrats in Congress have urged the Biden Administration to loosen the abortion pill restrictions beyond the pandemic, arguing that the in-person requirement creates barriers for people seeking access to abortions. HHS Secretary Xavier Becerra supported this position when he was California’s attorney general, leading other Democratic attorneys general to ask the FDA last year to remove the in-person requirement during the pandemic. But Republicans in Congress took the opposite tack, with both House and Senate lawmakers writing letters in the fall of 2020 to ask the FDA to remove the pill from the market completely and classify it as an “imminent hazard to the public health.”
ACOG sued to lift the in-person rule last year, but the Supreme Court sided with the Trump Administration in January to reinstate the requirement. A federal appeals court is currently hearing the case, and the Biden Administration asked for more time last month as it reviewed the restrictions. Its next court deadline is this week.
With the restrictions temporarily lifted, many patients will now be able to make an appointment to talk with a doctor over video or by phone and then receive abortion pills in the mail. Medication abortion consists of two pills: mifepristone, which the FDA regulates tightly, and misoprostol, which is not heavily regulated. Getting the pills by mail helps patients avoid exposure to the coronavirus in the current environment, doctors say, but it also eliminates obstacles that exist beyond the pandemic, such as traveling to an abortion clinic, taking time off work, arranging child care, and privacy concerns. Reproductive rights advocates also note that many of these barriers fall disproportionately on poor patients, people of color, and other already marginalized groups. “We want people seeking abortion care to be to be able to access it whenever they need it, and to really have the ability to access whatever type of abortion care they need,” says Destiny Lopez, co-president of All* Above All, a group that has pushed the Biden Administration to permanently loosen federal rules for abortion pills. “Medication abortion is part of that fight for abortion justice, because we know that the barriers that folks face are rooted in systemic racism and reflect ongoing inequities in our healthcare system.”
This flexibility is exactly what abortion opponents are concerned about. Kristan Hawkins, president of Students for Life of America, says her group got involved in the fight against medication abortion because it saw the pills expanding access and particularly being made available on college campuses. “It’s very clear with everything that’s been happening in the past few years within the abortion industry, that they’re trying to change the model,” she says. “Especially when you’re distributing these drugs on college campuses or via webcam, you don’t have to operate a facility that’s going to have people praying in front of it.”
Still, the increased availability of the pills doesn’t solve all abortion rights advocates’ problems. Abortion pills can only be taken in the first 10 weeks of pregnancy, when many people are still learning they are pregnant. And even with the FDA’s new decision, 19 states already have laws effectively prohibiting telemedicine for medication abortion. Taking the pills in states where they have been outlawed could be legally risky. While most abortion opponents say they do not want to punish the women seeking abortions and new state laws focus on restricting providers’ actions, some states have already prosecuted women for self-managed abortions.
The past year has given doctors a test run of how telemedicine works for medication abortion. A March article in the journal Contraception published findings from a long-term study by Gynuity Health Projects evaluating the use of telemedicine for medication abortion, which found that “direct-to-patient telemedicine service was safe, effective, and acceptable.” Planned Parenthood expanded its telemedicine offerings during the pandemic, and for the roughly six months that providers could use the method last year, many abortion clinics around the country prescribed medication abortions without in-person visits.
Researchers found similar success in the United Kingdom, where authorities loosened the in-person requirement for medication abortion when the pandemic began last spring. A new study published in the British Journal of Obstetrics and Gynecology examined more than 52,000 medication abortions and found that women waited an average of 4 days less to get telemedicine abortions and there was little difference in safety or effectiveness compared with in-person abortions. “I think we witnessed an innovation that will suddenly transform care and provide patients with much better quality, probably for the next generation,” says Dr. Jonathan Lord, co-author of the study and chief medical officer of nonprofit MSI Reproductive Choices, which performed more than 20,000 telemedicine abortions during the first year of the pandemic.
Advocates hope that this kind of evidence will help persuade Biden’s FDA to make the changes permanent. But even if that happens, they say, the fight over medication abortion is just ramping up.
“We know that they’re safer than most medications that you can buy over the counter, like Tylenol, for example. And yet, and still we see these onerous restrictions being put in place with the sole purpose of trying to limit access to abortion care,” says Dr. Jamila Perritt, an OBGYN and abortion provider in Washington, D.C. who is president and CEO of Physicians for Reproductive Health. “There is still work to do.”
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