Bottles of mifepristone, left, and misoprostol. The U.S. Food and Drug Administration eased restrictions on abortion medications during the pandemic. Some lawmakers want to reverse that. Charlie Neibergall/The Associated Press
In June, the U.S. Supreme Court is expected to weaken or topple its nearly 50-year-old abortion rights decision, Roe v. Wade, giving states wide latitude to restrict the procedure.
But most legislatures will be adjourned by then, and anti-abortion lawmakers aren’t waiting to address what they expect will be one result of widespread limits on clinical abortions: spiraling demand for medication abortions.
Since January, legislators in at least 20 states have proposed bills that would restrict or ban access to abortion pills approved more than two decades ago by the U.S. Food and Drug Administration.
This year’s flurry of bills was spurred in part by an FDA ruling during the coronavirus pandemic that eliminated a long-standing requirement that patients consult with prescribers and pick up the pills in person.
Under the FDA’s temporary ruling, which was made permanent in December, patients for the first time can consult with prescribers via telehealth and receive the pills by mail.
In response, lawmakers in Georgia, Kentucky, Louisiana, Maryland, Minnesota, Missouri, Nebraska, Ohio, South Dakota and Tennessee quickly proposed bills that would reinstate the old FDA rules.
The bills would require patients to pick up the pills at a medical facility rather than receive them in the mail, and in South Dakota, take the pills under observation by a medical professional.
Lawmakers in Iowa, Massachusetts, Minnesota and Missouri proposed bills that would ban telehealth consultations and instead require one or more in-person visits to a medical facility to receive abortion pills.
Outright bans on dispensing or using the FDA-approved medications have been proposed in Alabama, Arizona, Iowa, South Dakota, Illinois, Washington and Wyoming.
Lawmakers in 13 states also proposed legislation requiring physicians to tell patients that medication abortions can be reversed by administering doses of progesterone, a controversial treatment the American College of Obstetricians and Gynecologists says is not based on science and does not meet clinical standards.
Last year, Indiana enacted a law prohibiting medication abortions after 10 weeks of pregnancy, and Texas banned medication abortion after seven weeks of pregnancy.
The FDA approves use of the pills during the first 10 weeks of pregnancy. But doctors and abortion rights advocates say many patients have successfully used the medications later.
Originally called RU-486, a drug called mifepristone was developed by a French drugmaker in 1980 as a method of terminating an early pregnancy by blocking the natural production of progesterone, a hormone needed to maintain a pregnancy.
France became the first Western nation to approve the pills in 1988. But the FDA didn’t follow suit until 2000, when it approved mifepristone when used in combination with a drug called misoprostol, which causes uterine contractions to expel the embryo.
Although widely used elsewhere by then, the drugs were slow to take off in the United States.
By 2017 medication abortion had gained momentum, representing 39% of all abortions in the United States. In 2020, the non-surgical method accounted for 54% of abortions, according to a February report by the Guttmacher Institute, an abortion rights advocacy and research organization.
Women’s health experts predict that if more states enact abortion bans, the number of people who seek to end their pregnancies outside of the formal health care system will soar.
Texas last year banned abortions after six weeks of pregnancy, a statute the U.S. Supreme Court let stand while abortion supporters pursued a case against licensing officials who might discipline health care providers for performing abortions later in pregnancy.
Last week, the Texas Supreme Court upheld the law, which includes a provision that thwarts federal lawsuits against state officials by allowing anyone who is not a state or local official to sue a person who provides an abortion or “engages in conduct that aids or abets” one.
In the first week after the Texas law took effect in September, medication abortions in the state increased more than twelvefold, according to researchers at the University of Texas at Austin.
Legal Strategies
States first enacted laws restricting abortion pills in 2010, two years after Planned Parenthood began offering the medications in small towns in the Midwest through telehealth consultations with medical professionals based in larger cities.
Oklahoma enacted the first law, requiring the provider and the patient to be in the same room. Then in 2011, six more states—Arizona, Kansas, Nebraska, North Dakota, South Dakota and Tennessee—adopted similar requirements.
As of last year, more than half of all states had either banned telehealth for medication abortion or required one or more in-person visits. This year, conservative lawmakers are doubling down on those laws, said Elizabeth Nash, principal policy associate at the Guttmacher Institute.
“As abortion opponents watched what was going on with telehealth during the pandemic, it became apparent to them that access to medication abortion was expanding,” Nash said. “What we’re seeing this year and last is a reaction to that.”
In addition, she said, “with all signs pointing to the [Supreme Court] substantially damaging or even overturning abortion rights, it’s a way of hedging their bets and not putting all of their political capital into enacting new abortion bans that may or may not hold up in court.”
At least 21 states already have abortion bans on the books that could be enforced if Roe is overturned, according to Guttmacher.
Clarke Forsythe, senior counsel at Americans United for Life, which opposes abortion rights, agreed that state lawmakers would be wise not to put their efforts into enacting new abortion bans, since it is still uncertain what the high court will decide in the Mississippi case, Dobbs v. Jackson Women’s Health Organization, that it heard last fall.
Instead, he said, he expects more states to focus on restricting medication abortion now that the FDA has relaxed regulations.
“Short of a state trying to prohibit a chemical abortion altogether, I would expect that limits on chemical abortion will be enforceable no matter how the Dobbs decision goes,” Forsythe said.
Online Pills
In the District of Columbia and the 23 states that allow the use of telemedicine for prescribing abortion pills, patients can obtain the medication through the mail using a variety of online services.
In states where telehealth abortion medication is legal, prices range from $150 to $375, with discounts for those who are unable to pay and the possibility of charging the fees to Medicaid or private insurance.
Women in states that prohibit telehealth for medication abortion also can acquire the pills online through an offshore medical service called Aid Access, started by a Dutch physician in 2018. People seeking abortions can consult with a medical professional online or by phone and receive the pills in the mail for fees of up to $150, depending on income.
“We have this huge discrepancy in abortion access in this country,” said Elisa Wells, cofounder of Plan C, a nonprofit organization that supports access to abortion medication. “It’s an injustice that disproportionately affects people of color, LGBTQ and others who are marginalized.
“But even in states where legislators are trying their hardest to obstruct access to medication abortion,” she said, “there are these online services available that offer alternate routes of access.”
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