The Biden administration’s announcement this month that it would allow mifepristone to be sent by mail revolutionized access to abortion—in about half the country. Elsewhere, state laws requiring patients to meet with a provider in person preempt the new policy, underscoring just how much a person’s options depend on where they live.
“I think it’s great for states that it will impact,” Laurie Bertram Roberts, who cofounded the Mississippi Reproductive Freedom Fund and now leads the Yellowhammer Fund in Alabama, said with a wry laugh. “Neither of the states that I work in are one of those.”
For years, researchers have been assembling evidence that it is safe for patients to undergo a remote medical consultation and then end their pregnancy at home using a two-drug regimen of mifepristone and misoprostol. But since mifepristone first came on the market in 2000, the Food and Drug Administration has heavily restricted its distribution, even though advocates note that it has a safer record than Tylenol. Until this month, the FDA said mifepristone could only be “dispensed” to patients in a clinic or medical office, a rule that was generally interpreted to require patients to go in person to get the drug. On April 12, in response to a request from the American College of Obstetricians and Gynecologists, the FDA said that during the pandemic it would no longer enforce the in-person rule.
The decision allows patients in many states to have an abortion in the early weeks of pregnancy without leaving home. (In some cases, providers may ask a patient to undergo an ultrasound or blood draw, something that can be done in a gynecologist’s office or lab.) These patients can take advantage of a growing number of digital abortion startups that offer the service for a fraction of a clinic’s price tag: Hey Jane in New York and Washington, Choix in California, Just the Pill in Minnesota and Montana, and Abortion on Demand in at least 20 states. Such digital clinics proliferated during a six-month pause in the FDA rule ordered by a federal court in July, before the Supreme Court reinstated the rule in January.
In many states, however, patients will still need to travel—either to go to a clinic or to drive to a neighboring state that offers telemedicine abortion. Eighteen states ban telemedicine abortion outright, while others require an in-person ultrasound. Ohio became the latest state to pass a telemedicine abortion ban, even as the pandemic raged. Such barriers to abortion are often hardest to surmount for those with low incomes and people of color, who have been disproportionately killed and sickened by Covid.
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“We’ve always had inequity in abortion access, but it’s even more stark that in some states in this country you can go online, you can use a modern platform to have an interaction with a medical professional and have your pills mailed to you within a matter of days,” said Elisa Wells, cofounder of the medication abortion advocacy group Plan C. “In other states, you have to search out the closest abortion provider, which might be hundreds of miles from where you live, you have to find transportation, childcare, take time off from work, raise the money that is needed to pay the clinical cost of care, and jump through all those hoops just in order to get the same service that other people are accessing entirely from their homes for $150 or $200.”
This inequality could deepen if the Supreme Court, with its three Trump-appointed justices, further undermines or overturns Roe v. Wade. It’s unclear how and when that might happen. For months, the court has been sitting on the decision of whether to hear a case concerning Mississippi’s 15-week abortion ban, which is currently enjoined. The case presents a direct challenge to Roe v. Wade, which prevents states from banning abortion until viability—which happens long after 15 weeks. The delay is unusual, even for controversial cases, according to Mary Ziegler, author of Abortion and the Law in America.
“I think it’s just a head-scratcher. A lot of court-watchers just don’t know what to make of it anymore,” Ziegler said. But that case is not the only one that could result in an overhaul of abortion access as early as next year. “If it’s not this case there is going to be a steady stream of cases that move through the pipeline,” Ziegler said. That includes an Ohio law banning abortions motivated by a fetal diagnosis of Down Syndrome, which was upheld by the Sixth Circuit Court of Appeals on April 13.
Another proposal being considered in the Texas state legislature offers a new avenue of attack on access that could spread to other states. The bill would allow private citizens to sue anyone who “aids and abets” in an abortion, including helping to pay for it.
“That could be [a patient’s] best friend, that could be their sibling, their partner for driving them to the abortion clinic, it could be a pharmacist for giving them medication,” Kamyon Conner, executive director of the Texas Equal Access Fund, said. Conner worries that if it passes, the measure could be used to target not only abortion funds like hers that help people afford abortions but also anyone who donates to them.
States like Texas could also seek to impose criminal penalties on patients who manage their own abortions using pills obtained from overseas or out of state. Under current law, five states criminalize self-managed abortion, according to the group If/When/How. Even in states without such laws, women have been jailed on a range of charges when authorities accused them of ending their own pregnancies or helping other people to do so.
Despite these risks, countless people have found ways to get remote access to abortion medication, either by ordering the pills from overseas or traveling to states where the service is available. The TelAbortion Study, which launched under a research exemption to the FDA’s rules, mailed 1390 medication abortion packages from 2016 to 2020. In March, the study published results that found 99 percent of respondents were satisfied with the service and that serious adverse events like transfusions happened only 10 times. The study operates only in certain states that allow telemedicine abortion, and 30 people reported traveling to such a state for their remote consultation and then retrieving the pills from an out-of-state address.
Tara Shochet, director of the TelAbortion Study, said she was encouraged to see the project cited by the FDA in its April 12 decision. She and other advocates hope that the agency will use such data to permanently ease access to medication abortion even after the pandemic.
“My own personal inclination is that just this move on its own directly from the FDA is indicative of a willingness to really examine the issue in an evidence-based fashion,” Shochet said. “That makes me hopeful that we may see a long-term change.”
Overall, reproductive justice advocates have been encouraged by Biden’s appointment of Xavier Becerra, an outspoken supporter of abortion rights, to lead the Department of Health and Human Services. The administration has also moved to reverse the Trump-era policy of withholding Title X family planning dollars from organizations that offer information about abortion, and repealed the global version of that policy. But advocates like Destiny Lopez, codirector of All* Above All, had hoped to see a more full-throated denunciation of the Hyde Amendment, the 45-year-old ban on federal funding of abortion that withholds coverage for the procedure for many low-income patients. Biden supported the funding ban for years before caving to pressure from reproductive justice advocates and denouncing it on the campaign trail. While repealing Hyde requires action by Congress, Lopez wants Biden to send lawmakers a budget free of abortion coverage bans and use the bully pulpit to speak out against the ban.
“I think that where we need more work from the administration is lifting up this issue and talking about it,” Lopez said. “We’ve got policy asks, but that bully pulpit piece is super important.”
Lopez is not the only one who has noticed reticence from the administration when it comes to abortion. Renee Bracey Sherman, a leading reproductive justice advocate, has been scanning the administration’s public comments for mentions of the word “abortion.” On April 14, White House press secretary Jen Psaki used it in a press conference, but only to insist, in response to a reporter’s question, that Title X funding would not be used to pay for it.
“Those of us who have had abortions have a low bar: Could you say the word abortion, Biden?” Bracey Sherman said. “It’s a very low bar. And yet, he’s not meeting it.”
