Is abortion access in peril (even where it's legal)? Supreme Court case could tip balance.
The Supreme Court’s decision to hear cases challenging the abortion pill could threaten access for hundreds of thousands of patients in states where abortion is legal and protected, experts say.
The justices agreed Wednesday to review an appellate ruling that significantly restricted use of the drug mifepristone, rolling back the Food and Drug Administration’s decision to make the pregnancy termination drug available to patients through telemedicine and the U.S. mail.
The high court is expected to rule in the two mifepristone-related cases by June. If the majority determines the FDA overstepped its bounds by making abortion medication accessible through video appointments and mailed medicine, people would no longer be able to obtain these abortions in their first trimester remotely, regardless of state laws that protect access to abortion.
The court's ruling also could cut off remote prescriptions for patients in states where abortion is illegal.
“The real risk is everywhere that (it) is legal today,” said Sara Rosenbaum, professor of health law and policy at George Washington University’s Milken Institute School of Public Health. A ruling against telemedicine appointments and mailing the abortion pill to patients “would be equivalent of a nationwide ban.”
In 2020, medication abortions accounted for more than half of all abortions in the United States, according to the Guttmacher Institute, a research and policy organization that supports abortion rights. Experts say patients in rural areas who don’t live near an abortion clinic or don’t have the means to travel to one would be most at risk of losing their access to abortion.
People traditionally underserved by the health care system, including minority populations and people living in poverty, would be particularly affected by the decision, said Melissa Grant, COO of carafem, a network of reproductive health clinics and telehealth providers across the U.S.
“Abortion care is already out of reach for millions,” said Grant, who noted that most of her patients use telehealth services in the 16 states that carafem serves. “This is not just a small thing where we’re limiting one type of access, we’re limiting service to the most used and accessible type of abortion that we have left in this country.”
Limiting access to mifepristone to people who make in-office visits also would reverse a trend in health care that became popular and was widely adopted during the COVID-19 pandemic amid stay-at-home orders, Rosenbaum said
“This is the way health care works now,” she said. “You would have to get a physical prescription and carry the prescription to the pharmacy. It’s just not the way health care rolls anymore in the U.S.”
Studies have found that telemedicine increased access to abortion care across the country. Most patients preferred it because of its convenience, low cost and their belief that the telehealth service would maintain their confidentiality.
More appointments tougher for out-of-state patients
The Supreme Court ruling also could affect how many times doctors must see a patient before they can prescribe the abortion pill. The FDA’s decision in 2016 reduced the number of visits necessary to access medicine. Patients needed only one doctor’s visit instead of three, the FDA determined.
If the high court were to impose more required doctor visits and effectively longer wait times, it would largely affect patients traveling long distances, including those traveling from states where abortion is illegal.
Bristol Women’s Health in southwest Virginia typically dispenses the drug the same day patients come in for their doctor's visit. Increasing the number of appointments required for the drug would be devastating for patients who travel long distances from states that have banned abortion, said Karolina Ogorek, the clinic’s administrator.
It’s hard enough for patients to arrange child care and get off work to be able to travel from states like Louisiana or Mississippi, she said. It would be nearly impossible to stay in town long enough for three appointments.
A ruling requiring more appointments would “harm more women than it will help,” Ogorek said. “I don’t really have that much hope.”
Civil disobedience and the safety of the abortion pill
Decades of medical research have firmly determined that mifepristone is safe and effective, said Dr. Nisha Verma, an OB-GYN and complex family planning specialist in Atlanta.
Studies have repeatedly shown it to be safe when used, typically side-by-side with the drug misoprostol, to end a pregnancy up to 11 weeks of gestation and to help patients who have miscarried.
"We have excellent, very rigorously done, evidence-based data showing it's safe, that none of these restrictions are necessary," said Verma, also a fellow with the American College of Obstetricians and Gynecologists. "All they do is limit access. They don't make the care safer."
Verma said she's also concerned that a court ruling could make it harder to access mifepristone for other uses, such as for people who have experienced a miscarriage. The abortion pill is often used instead of a surgical procedure requiring anesthesia, once a patient has miscarried. Roughly one-quarter of pregnancies end in miscarriage.
The pill is also used by people whose fetus has died up until their 15th week of pregnancy if they want a vaginal delivery to "have that space and time to hold the baby they lost." A surgical procedure does not allow that.
Limiting access to mifepristone "is just making it harder for people to get the care they need," she said.
Roughly 7,000 people a month receive the combination of mifepristone and misoprostol from the abortion advocacy organization Aid Access, said Dr. Linda Prine, its medical director.
Prine, a family physician who also works for the Abortion Coalition for Telemedicine, said she has never seen a better-studied drug than mifepristone.
If people are denied access to the drug, Prine said, she and doctors like her will have to decide whether they will practice civil disobedience and offer it anyway.
"The idea of states deciding what medicine is available to people is so wrong," Prine said.
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