As the Supreme Court nears a final decision on whether to overturn decades of legal protection for abortion, campaigners and lawmakers are fighting on a new front in the battle over reproductive rights: abortion pills.
Over the past decade, medication abortions — which involve consuming two drugs, mifepristone and misoprostol, to terminate a pregnancy within the first 10 weeks — have gone from representing a quarter of all terminations in the US a decade ago to more than half.
Many health experts say it offers a safer, cheaper and less-invasive alternative to surgical procedures. Amid the Covid-19 pandemic, US federal regulators last year authorised telehealth providers to post pills directly to women’s homes with no need to visit a doctor or pharmacist in person.
But the telehealth providers who offer medication abortions must negotiate an increasingly complex legal minefield as Republican-controlled state legislatures rush to pass new laws restricting abortion access and, in some instances, criminalising the distribution of pills that enable self-managed medication abortion.
According to research by the Guttmacher Institute, a pro-abortion rights group, 19 states have laws requiring a clinician prescribing abortions pills to be present when they are ingested, effectively prohibiting their prescription via telemedicine.
Six states, including Texas and Missouri, have also enacted specific laws to ban telehealth abortions.
Anti-abortion campaigners have flagged concerns for women’s safety as a core issue. “These drugs are not without serious side effects — healthcare is not the fast-food restaurant industry,” said Doc Marshall, a Republican US senator representing Kansas and a leading anti-abortion advocate.
Some states enforce these abortion laws through “bounty hunter” clauses, which allow private citizens to sue anyone who “aids or abets” an abortion, such as doctors or pharmacists.
“We expect this [telehealth] to be the next big battleground for abortion because, of course, it is one thing for a state to criminalise abortion but it is another to actually enforce that,” said Mary Ziegler, professor of law at Florida State University. “So I think the ability of states to limit access to medication abortion is going to be a big factor in how effective these criminal laws are.”
She said most state laws do not criminalise the act of taking abortion pills but instead target abortion providers and healthcare professionals. However, Louisiana is debating a bill that would criminalise taking abortion pills, and other states could follow, Ziegler said.
Danco Laboratories, which distributes mifepristone in the US, said the combination of laws at the state level and potential undoing of protections at a federal level — if the Supreme Court ultimately overturns its landmark 1973 Roe vs Wade decision — could force women to seek clandestine means of abortion including online services that are “questionable and difficult to determine as being legitimate”.
GenBioPro, which makes a generic version of the abortion pill, sued Mississippi in 2020 to block restrictions on medication abortion in a case that will test whether FDA rules on ensuring access to safe medication supersede state laws. A decision is expected later this year.
Some women’s rights campaigners believe mail-order telehealth services can still find a way to maintain some level of abortion access for women, either by mailing pills directly to women’s homes or by sending them to friends who live in nearby states that do not outlaw the practice.
In the week after Texas effectively banned abortions after six weeks, Aid Access, a telehealth provider that posts abortion pills to American women, registered a near 1,200 per cent increase in requests for pills, according to a report by the University of Texas.
“It’s a bleak outlook,” said Rebecca Gomperts, a Dutch doctor and founder of Aid Access.
Gomperts, who has spent two decades providing abortion care to women in nations that restrict access such as Ireland and Morocco, said she plans to increase Aid Access’s mail order service to deal with a surge in demand for pills if the court implements the draft ruling. She called it a “moral obligation” to protect women’s constitutional right to abortion care, even if it violates the law.
Most experts predict a much larger surge in pill requests if the Supreme Court overturns Roe. Twenty-two US states have passed local laws to outlaw abortion when constitutional protections are removed.
Rising demand for abortion pills has attracted some telehealth for-profit enterprises as well. Hey Jane, a US-based start-up led by a former project manager at Uber, is seeking investment to expand a service that provides an online consultation with a member of staff and posts pills to women. Unlike Aid Access it only posts pills to six states where telehealth services are legal.
“Abortion care via mail is now likely to be the most viable form of access for most of the country,” said Kiki Freedman, co-founder and chief executive of Hey Jane.
Freedman said Hey Jane has had an increase in patients because of the impact of abortion restrictions in states such as Texas, which has caused long wait times at clinics in nearby states where abortion is accessible.
Most experts say telehealth cannot completely fill the gap in abortion services that would emerge in a post-Roe landscape. Only about one in five women know mail order pills are available, according to Freedman, and campaigners say financial, technological and other barriers will make it difficult for vulnerable groups to access pills.
Gomperts says Aid Access, which posts some of its abortion pills from India to circumvent state laws, will do everything it can to boost access. The group provides its service for free to women who cannot afford to pay and is recommending women who fear they could get pregnant in the future to pre-order pills before more state bans come into effect.
But conservative opponents have Aid Access and other telehealth groups in their sights and are appealing to state and federal authorities to prevent them from operating. The FDA said it takes “seriously concerns” related to the sale of unapproved mifepristone for medical termination of early pregnancy, although it declined to comment on enforcement actions.
“In this case, it’s an European doctor with a blatant and unapologetic disregard for our federal regulations and state laws,” said Marshall, the senator. “I call on the FDA and other relevant federal agencies to do their job and ensure this organisation it held accountable.”