For years, abortion rights advocates have known that the most viable answer to the problems posed by a post–Roe v. Wade America is to make abortion pills more easily accessible. Unfortunately for them, anti-abortion legislators have started to figure this out as well.
As laws challenging the national right to abortion are moving through the courts — including a case the US Supreme Court will rule on this spring that could dramatically upend legal protections for the procedure — anti-abortion state legislators have started to introduce an increasing number of laws that restrict, or even ban, medication abortion.
Conservative lawmakers and abortion rights advocates are “fighting that fight of the future,” said Christie Pitney, a certified nurse midwife who provides abortions through telehealth in four states. “They’re already planning ahead for the next step."
That next step after the potential dissolution of Roe — the landmark 1973 Supreme Court case that cemented the national right to abortion — is a future in which abortion is banned or severely restricted in some states and the easiest way to end a pregnancy is at home, with pills mailed or picked up from a clinic.
If Roe is rolled back, how severely abortion is restricted will be up to each state, some of which are already working to pass strict bans. At least 16 states have introduced anti–medication abortion bills so far in 2022. In just the first couple weeks of March, state lawmakers in Kentucky, South Dakota, Georgia, and Wyoming pushed forward bills that would make it harder, or nearly impossible, to get the abortion pill from providers in their state.
So for many, this imagined post-Roe landscape is already a reality. During the pandemic, the number of people seeking medication abortions over surgical ones increased dramatically. Jessica Nouhavandi, cofounder and lead pharmacist of Honeybee Health, an online pharmacy that provides medication abortions, said that in September 2021, the company saw a roughly 300% increase in abortion pill prescriptions from the prior quarter. Medication abortions accounted for more than half of all US abortions in 2020 and are poised to continue as a preferred method as further restrictions on abortion access cause in-person clinics to be overwhelmed in some states or shuttered in others.
Medication abortion — not to be confused with emergency contraception — is a noninvasive procedure that involves a medical provider prescribing pills that are taken orally to end a pregnancy of up to 11 weeks. The procedure has been widely tested, has a high success rate, and has resulted in very few incidents of hospitalization.
Surgical abortions in the US can cost between $400 to $1,500, and, due to hundreds of legal restrictions passed by anti-abortion legislators over the past few decades, can be incredibly hard to access in some states. Patients can face long, redundant appointments, legally required waiting periods, and other frustrating logistics, such as travel and scheduling conflicts. Medication abortion conversely costs around $150 and allows people who may have childcare duties, work, or otherwise lack the time and funds to travel to a clinic to manage their abortions privately and efficiently.
How It Works
The FDA requires that medication abortion be provided by a licensed clinician at a health center or a virtual provider. For the virtual option, the clinician orders the prescription to one of two approved online pharmacies, and the patient can have it mailed to them. The medication can be taken at a healthcare center or at home. A healthcare provider will talk patients through the process ahead of time, explaining how to proceed, the medication schedule, and any issues or warning signs to watch out for.
While there are a range of methods, the most common process is a two-step regimen of six or more pills. First, a patient takes mifepristone (brand name Mifeprex) to block the progesterone a pregnancy needs to continue, followed by misoprostol up to 48 hours later, which causes uterine contractions that expel the pregnancy. Medical providers may also prescribe antibiotics and anti-nausea medication to help with potential side effects. The patients are often able to call their medical provider throughout the process with any questions or concerns.
Maggie — a New York–based family medicine doctor who asked that her last name not be used for safety concerns — virtually prescribes medication abortion to patients in New York, Vermont, Connecticut, and, until recently, New Hampshire.
Maggie’s patients typically come to her through an internet search: They use Google or websites like Plan C, which provides state-by-state information about what options are available where they live. These searches lead them to online medication abortion providers like Aid Access or Hey Jane, and finally, through those, to Maggie, the doctor who will prescribe the drug and be there for patients if they need her.
On these websites, patients fill out a long consultation form that helps Maggie identify how far along they are (she typically only provides medication abortions to those within the first 10 weeks of pregnancy) as well as any issues that could cause complications in the medication abortion process (for example, bleeding disorders or suspected ectopic pregnancies). Not all people who request abortion pills from her are pregnant, Maggie said. They may be seeking to obtain the medication on behalf of a family member or a friend, or just want to have it around in case they become pregnant in the future.
If the intake form presents no medical questions or concerns, patients sign an online consent form. Maggie then sends the prescription electronically to Honeybee Health in California, one of only two online pharmacies in the US that dispense medication abortion pills. The prescription is then shipped via priority mail to the patient.
Since December, Maggie said her calendar showed a 25% increase in appointments in New York. However, she was forced to shutter her services in New Hampshire last month. A new law was enacted in January requiring people to have an ultrasound before receiving any abortion care. Having to connect with myriad health centers in New Hampshire in order to prescribe and receive patients’ ultrasound results would have been too much to manage, especially for people who don’t have health insurance.
“It’s frightening, it’s amazing, to think that we could be facing a post-Roe world,” Maggie said, adding that she never thought the country would get to this point. “But to think that medication abortion at least allows us to help a good majority of people in a very easy and safe manner is crucial.”
The Legislative Battle
Restrictions on abortion pills have popped up before, but the number of bills targeting medication abortion, and the speed at which they are being introduced, is new.
In the first few months of 2022, five states have introduced prohibitions on mailing abortion pills, and eight states introduced laws banning the use of telehealth to provide medication abortion, the Guttmacher Institute found. Alabama, Arizona, Illinois, Iowa, South Dakota, Washington, and Wyoming introduced all-out bans in January and February, and many other states have preexisting restrictions or “trigger bans” that would outlaw the medication if the Supreme Court deems those bans legal.
Mailing abortion pills to patients is currently banned in Arizona, Arkansas, and Texas. Telehealth appointments to get abortion pills are banned in 19 states. Thirty-two states require clinicians who administer abortion pills to be physicians (rather than nurse practitioners or other licensed medical professionals), which further limits availability, especially for patients in rural areas.
Many of these bills may not pass or be allowed to go into effect if challenged in court. In fact, just this month, a court blocked enforcement of a medication abortion ban in South Dakota. Rules have been passed but haven’t gone into effect in Montana and Oklahoma because they’ve been challenged via court cases as well.
“The types of bills we have seen in 2021 and 2022 are unlike what we have seen before. This is a shift in strategy by abortion opponents,” said Elizabeth Nash, interim associate director of state issues at the Guttmacher Institute.
Many of the new medication abortion restrictions follow a precedent set in Texas, where a de facto medication abortion ban was enacted in December 2021, preceding SB 8, a populace-enforced, six-week abortion ban that went into effect in September. Texas’s medication abortion ban cuts the window to undergo the process from 70 to 49 days, prevents the mailing of abortion pills, and added new reporting requirements for abortion. Other states are following suit and coupling draconian 15- or 6-week abortion bans with bills specifically curbing medication abortion access, Nash said.
Another catalyst for these anti-medication abortion bills is the FDA’s December 2021 decision to permanently allow a COVID-era rule permitting abortion pills to be dispensed by mail, lifting a significant restriction.
This was enabled by the Biden administration relaxing some of the federal restrictions on these pills in 2020. For the first time, people could get them from telehealth and in the mail, which was impossible before.
Per the FDA’s revised guidelines, pharmacies in the US need to register with the pharmaceutical companies that make the medication to distribute the drug, although the guidelines for how pharmacies are going to get the drug, how prescriptions will work, and what kind of pharmacies can participate are yet to be determined, Nash said.
“Since the December 2021 FDA decision, the drug sponsors have been working with the FDA to establish a certification protocol, but that process is still ongoing,” Honeybee Health's Nouhavandi said.
The FDA’s decision may help widen access to telemedicine abortion, but reproductive justice advocates did not see the move as a total win. Susan Yanow, cofounder of Women Help Women, called the move “very conservative” and said it was just a “maintaining of status quo.” Yanow and other reproductive justice advocates argued that the FDA should have lifted all current restrictions on the abortion pill, making it accessible over the counter without a prescription.
While anti-abortion legislators often cite safety concerns, the real intention of these laws is to bar people from accessing abortion through delays in access to care, advocates say. This can force people to obtain later-term abortions or cause them to seek abortions in unregulated, less safe ways.
“It’s these laws that are banning access to modern medical care that are really forcing people to look for alternate ways to access care outside of the conventional medical system,” Elisa Wells, cofounder and codirector of Plan C, said. Wells was referring to self-managed abortion, which is the process of administering an abortion on one’s own without a clinician’s help either through pills or other, less reliable methods such as herbs.
Self-managed abortion can also be legally risky. At least 24 people since 2000 have been criminalized for inducing their abortions, and the risk of criminalization is higher for people of color and members of the LGBTQ community.
“The people who are least able to access care are also the most likely to be punished,” said Farah Diaz-Tello, senior counsel and legal director of If/When/How, a legal group that advocates for reproductive justice. They added that an “unfortunate legacy” of Roe is the complexity of the laws governing abortion, creating more legal traps than most medical procedures have.
“As we expand options for telemedicine-based abortion, we want to be mindful that we’re not creating more ways for people to get entangled in the law and ultimately punished by the law,” they said.
Aside from the medical workers directly helping patients get the drug, other resources have sprung up to help patients navigating the medication abortion journey. If/When/How’s Repro Legal Helpline explains legal rights involving self-managed abortion; Abortion on Demand sends “abortion kits” including pills to people; and the Miscarriage and Abortion Hotline can put people in touch with clinician counselors who can help curb any concerns, answer questions, and give advice during their medication abortion.
An online appointment may seem more accessible, but it is not a universal solution for all abortion experiences. Pitney, the nurse midwife who provides telemedicine abortions, said she’s most concerned about people in rural communities, people in prison, and those in immigration custody who may not be able to access an online appointment. In order to help expand access, Pitney offers some aid to those struggling to pay, hired a clinical assistant who speaks Spanish, and is currently working on becoming licensed in more states.
However, the availability of abortion care via the internet will undoubtedly help people access the medication, even in states with severe restrictions. Aid Access is an abortion provider with two doctors in Europe who prescribe a generic version of the abortion pill to people all over the US. The medication ships from India to the US within roughly three weeks (a time period that can mean a major difference in pregnancy, but is often preferable to no access at all). Pharmacies from India are not subject to the FDA’s guidelines.
Because states like Texas cannot bring European doctors under their laws without foreign cooperation in a federal extradition case, Aid Access is likely able to operate without legal risk to its medical providers no matter what happens to abortion rights in the US, Diaz-Tello said.
Those kinds of legal openings will remain, even if anti-abortion lawmakers continue to set their sights on medication abortion, said Wells, the Plan C codirector.
She went on: “Access to medication abortion through these alternative routes is unstoppable at this point.” ●