In the wake of a leaked Supreme Court draft opinion that would overturn Roe v. Wade, abortion access is set to be restricted further across many states in the U.S. About half of the states would likely make abortion illegal or restrict it heavily if Roe is overturned.
But the landscape for abortion access – and women’s healthcare, in general – has greatly changed since the case was decided in 1973. Mifepristone, part of a two-pill course with misoprostol that can be used to terminate a pregnancy up to 10 weeks, was approved by the FDA in 2000. According to the Guttmacher Institute, a reproductive health research institute that supports abortion rights, medication abortion made up 54% of U.S. abortions in 2020, up from 37% in 2017.
Meanwhile, the expansion of telehealth during the COVID-19 pandemic and the slow, but steady growth of women-focused digital health startups have demonstrated other ways to deliver healthcare. But the abortion law and regulatory landscape is complex, creating barriers for providers and companies that want to offer medication abortions via telehealth.
“So, there’s telehealth laws, abortion laws and who can provide them,” said Lauren Dubey, chief nursing officer at Choix, a telemedicine clinic that offers medication abortion as well as contraception. “So, it is a bit of a regulatory nightmare.”
A complicated landscape
Many states already have laws on the books to restrict access to medication abortion delivered through telemedicine. Tennessee Gov. Bill Lee recently signed a bill into law that would make providing abortion through telehealth a Class E felony, punishable with a fine of up to $50,000. The law is slated to go into effect 2023.
In March, South Dakota Gov. Kristi Noem signed a bill that would require women to make at least three separate trips to a clinic to get a medication abortion, but that law is held up by a court injunction.
“The permanent protections enacted today are vital to stop the proliferation of dangerous mail-order abortion drugs, which puts both unborn children and their mothers at serious risk,” Marjorie Dannenfelser, president of the Susan B. Anthony List, an anti-abortion nonprofit, said by statement about South Dakota’s law.
However, studies have shown delivering medication abortions via telemedicine has comparable outcomes to in-person care. A study of 110 patients published last year in JAMA Network Open found 95% had a complete abortion without any additional medical intervention, and no patients reported major adverse events. Research published in the British Journal of Obstetrics and Gynaecology found patients, on average, waited less time from referral to treatment using a telemedicine or hybrid model, and more abortions were provided at less than six weeks’ gestation.
Clinician-related restrictions are another barrier. Thirty-two states require the clinician administering medication abortions to be a physician.
“It allows a more efficient healthcare system to be able to hire that range of clinicians to be able to do it. But even if you have the technology infrastructure to provide medication abortion, if you don’t have the provider, then that’s going to be a stopgap,” said Liza Fuentes, a senior research scientist at the Guttmacher Institute.
While some states have increased restrictions, the FDA has loosened regulations surrounding the abortion pill. In December, after temporarily lifting the in-person dispensing requirement during the COVID-19 pandemic, the FDA decided patients could obtain mifepristone through the mail permanently.
But it’s unclear how the interaction of state law and federal regulation will play out when it comes to medication abortion, said Laurie Sobel, associate director for women’s health policy at the Kaiser Family Foundation. In 2014, a federal judge in Massachusetts struck down a state law that attempted to regulate opioids more stringently than the FDA, arguing Massachusetts’ order was pre-empted by federal law.
GenBioPro, which makes mifepristone, has already challenged Mississippi’s restrictions, arguing the federal rules supersede the state law. There hasn’t been a ruling in that case yet.
Sobel stated: “This is an interesting situation, in which it’s a medication, which is regulated at the federal level by the FDA. … If they say actually abortion is not constitutionally protected, and it goes back to the states, and the states get to decide if they want to ban abortion or if they want to protect it or how they want to proceed, how does that intersect with the FDA regulating a medication?”
Could telemedicine bridge the access gap?
Even as the law remains complex for providers and patients seeking a medication abortion through telehealth, there are ways it could improve access. For instance, in states with few restrictions, it could be easier for a woman with childcare concerns or one who lives far from a clinic to have an abortion via telehealth.
And as states add restrictions, providers in nearby states may be overwhelmed by people traveling for abortions, said Choix’s Dubey.
“We see a lot of patients in Colorado who are saying, ‘Yeah, I tried to make an appointment at my local Planned Parenthood, but the wait is two-and-a-half weeks out, and then I would be too late for the medication abortion.’ And we know from our colleagues and from the general abortion landscape that is the way that telehealth can help,” she said.
But like other telehealth procedures, providers have to pay attention to who might be left behind, like people who don’t speak English fluently or those without access to high-speed internet.
It was a huge effort to build up telehealth services at the beginning of the COVID-19 pandemic, said Kaori Sueyoshi, director of innovation at Planned Parenthood. They set up learning labs across their affiliates to share best practices around broadband access, language support and privacy. The reproductive health services provider also spent time training staff to assist patients and developing educational materials so patients could log on more easily.
“Telemedicine does increase access to healthcare services, [but] we’re still at a crisis point when it comes to abortion access in the U.S.,” she said. “And I think that’s obvious to anyone who is paying attention at all to the news, but the attacks on abortion are mounting and the landscape for abortion access is under a historic amount of threat right now.”