A post-Roe complication: FDA allows abortion pills to be sent by mail, without in-person consultation

Not a major complication, I think. State law in red states will largely neutralize this decision. But it’ll make abortion even easier in blue states, which means we might see the number of terminations in Democratic jurisdictions rise post-Roe even as they fall in Republican ones.

For 20 years the FDA required doctors who wish to prescribe abortion drugs to dispense it themselves. Telehealth appointments weren’t allowed and the pills couldn’t be sent through the mail. Doctor and patient had to meet for the transaction. But the FDA made an exception to that rule during the pandemic. Temporarily, to avert the risk of COVID infection, doctor and patient could transact remotely. An appointment could be held by video chat and the pills placed in the mail. The drug, mifepristone, blocks the creation of progesterone needed to maintain viability of the fetus. A second drug, misoprostol, that’s commonly available at pharmacies is then taken within 48 hours to flush out the uterus. Mifepristone is only authorized for use within the first 10 weeks of pregnancy, although of course what happens between doctor and patient is known only to them.

A lot of abortions are carried out this way. Per the NYT, 42 percent of all terminations involved medication in 2019. Among those that happened in the first 10 weeks of pregnancy, it was 54 percent.

Today the FDA announced that the “temporary” pandemic rule is no longer temporary. Pregnant women can now permanently get their abortion pills through the mail following a telehealth consultation with a doctor, a potentially giant loophole if SCOTUS ends up overturning Roe. If pregnant women in red states are just a video chat away from being able to carry out their own abortions at home then state abortion bans are easily dodged. Which is why red states have been scrambling to close the loophole, passing laws that ban the receipt of abortion drugs through the mail, require in-person consultation for abortions to take place, and so forth. This will be the next stage of abortion litigation in the U.S. if/when Roe is gone: What rights, if any, do women in red states have to facilitate at-home abortions via interstate channels over the objection of their state governments?

In 33 states, only licensed physicians are permitted to dispense abortion pills, while two states — Indiana and Texas — prohibit the use of medication abortion beginning at a set stage in a pregnancy, according to the Kaiser Family Foundation. Nineteen states, meanwhile, require a clinician providing a medication abortion to be physically present when the drug is administered or restrict the use of telemedicine. In 2021 alone, at least six of those states enacted laws prohibiting the mailing of drugs for medication abortion, according to the Guttmacher Institute, a pro-abortion rights research organization. Some of the laws, though, have been blocked by the courts.

“I think this is the new frontier,” Liebel said. “The states were a little slow on the uptake to anticipate the explosion of the use of abortion-inducing drugs. I think they’re playing a little bit of catch-up, but it didn’t start this year.”

Assuming all of those laws stand up to court challenges, red-state women seeking an abortion will still need to travel out of state. But they may not need to travel as far:

The current practice is that women who live in states that don’t allow telemedicine for abortion must travel to a state that does — although they don’t have to visit a clinic. They may be in any location within that state for their telehealth visit, even a car, and may receive the pills at any address in the state.

But legal experts said they expected supporters of abortion rights to try to find ways to make the pills available without requiring a patient to travel, including possibly filing legal challenges to state laws banning telemedicine for abortion.

Thanks to the new FDA rule, a pregnant woman in a red state could cross into a blue one and theoretically stay at a hotel near the border. There she’d have her telehealth appointment, have the pills overnighted to the hotel, take them, and then go home. There’d still be an expense in covering the hotel costs but maybe not as much of one as if she had to drive all the way to the provider’s office for an in-person consultation. Women in blue states, especially in far-flung rural parts, will take even greater advantage of the new rule since now they won’t need to leave home to have an abortion. They can do the whole thing from their couch. Which is another reason why I wonder if, post-Roe, abortions nationally will actually decline as much as pro-lifers are hoping.

There are valid reasons to want a pregnant woman to see a doctor in person before aborting but the FDA seems to think the risk of complications is low enough to justify the new rule:

Liebel and other antiabortion activists argued that an in-person visit with a physician is essential because some rare conditions can result in complications after a medication abortion, and those conditions may not be discovered during a telehealth consultation. They say ultrasounds could detect extremely rare ectopic pregnancies, in which the fertilized egg implants outside of the uterus, which can be life-threatening…

But a study that reviewed medication abortions in Canada after mifepristone became available with a normal prescription in 2017 showed that adverse events and complications remained stable, compared with the period when mifepristone was available only under restrictions. Groups including the American College of Obstetricians and Gynecologists and the American Medical Association have said it is safe to eliminate restrictions on the drug.

The FDA says that adverse events after taking the medication are rare. Among the estimated 3.7 million patients who took the pill between 2000 and 2018, there have been 24 deaths, with two linked to ectopic pregnancies, according to data collected by the FDA.

Three thoughts. Will the FDA end up reversing and re-reversing this rule every four or eight years depending upon whether a Democrat or Republican is in the White House? It’s hard to believe that each side won’t insist upon it. Pro-lifers in particular will be furious to see the rules for abortion being further relaxed in blue states after the great moral and legal triumph of overturning Roe. Republican administrations will be pressured to use every lever of federal power to limit abortions in those states, and having the FDA undo its rule allowing remote access for abortion pills would be one of the easiest to use. Even though it’ll make public health regulation overtly partisan.

Will red states — or at least purplish-red ones — try to find some accommodation for women who want abortion pills? The fact that mifepristone is supposed to be taken early in a pregnancy, during the first 10 weeks, will make it more politically tolerable to voters. Americans dislike late-term abortions but are more amenable to ones during the first trimester, when it’s easier to argue that the fetus isn’t “yet” a person. Maybe 50/50 states looking for a compromise will decide that surgical abortions are prohibited but medical abortions, if carried out early, should remain legal.

Finally, what kind of black market for mifepristone should we expect in red states? Pro-lifers wisely focus their efforts to curb abortion on providers, not the women who seek them out. But if abortion becomes illegal in some states, it’s a cinch that some women will risk punishment by arranging for illicit abortion pills to be sent to them from out of state. When local cops intercept the shipments, those women will presumably be hauled off to jail. I don’t know how that plays politically.

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