What’s next for virtual abortions post-Roe

When did abortion medication become available through the mail?

Abortion medication had to be picked up in person until 2021 when the FDA suspended enforcement of the requirement because of the Covid-19 pandemic. Last December, the FDA permanently pulled those requirements, a move protested by anti-abortion rights activists who complained it put women’s health in jeopardy.

Medication abortions have become increasingly common in the past two decades: They made up more than half of abortions in the U.S. in 2020, according to the Guttmacher Institute, an abortion rights advocacy and research group.

Are the pills safe? How well do they work?

Medical experts say virtual abortions are safe and effective. In 2016, the FDA green-lighted Gynuity, a nonprofit research group, to run a multiyear study on teleabortion, which connected 1,300 women in 13 states with medication abortion. This study, which found virtual abortion to be safe and effective, was one of the sources of data the FDA considered in its decision to suspend the in-person requirements during the pandemic.

Additionally, groups petitioning the FDA to lift the dispensing restrictions submitted studies that showed the medication to be about 95 percent effective in ending pregnancies with less than 1 percent complication rates.

Another study found adverse events in less than 0.2 percent of telemedicine patients and about 0.3 percent of in-person patients.

However, the pills have limitations. They are FDA-approved only for the first 10 weeks of a pregnancy, so many people might not realize they are pregnant in that time period.

While surgical abortion is slightly more effective than medication abortion, studies show the safety profile is roughly comparable.

How does the Roe decision change access to virtual abortion?

Access to telemedicine abortion is subject to state laws. Before Roe, 19 states already banned the use of telehealth for abortion, according to the Guttmacher Institute. More could do so with Roe’s fall, but it’s more likely they’ll just ban abortion altogether instead of just restricting telemedicine abortion, said Greer Donley, a law professor at the University of Pittsburgh.

If states ban or restrict abortion post-Roe, that also would cover telemedicine abortion.

“Telehealth will be available in the states that seek to protect abortion. And it won’t be legally available in the states that seek to ban abortion,” said Laurie Sobel, associate director for women’s health policy at the Kaiser Family Foundation.

Abortion is either now illegal, soon to be illegal or possibly illegal in 16 states.

Will state abortion bans stop people from getting medication abortion via telehealth?

People won’t stop getting virtual abortions, experts say, though it may become more cumbersome — and risky.

Experts say people likely will travel across state lines to access telehealth services. That could mean patients leaving their state and taking virtual appointments in a car in other states or having the pills mailed to a P.O. box near the state border.

Patients also could turn to groups like Austria-based Aid Access, which offers online consultations and mails pills to all states. Because it’s based internationally, legal experts say it would be difficult for states that ban abortion to enforce their laws against groups like Aid Access.

“The idea of being able to have any repercussions for groups that are abroad, it’s a lot harder to imagine,” Sobel said.

Aid Access has seen a surge in interest since POLITICO first reported the draft SCOTUS opinion in early May, particularly for “advance provision” of the medication, or getting the pills now in case they’re needed later.

How are blue states trying to expand access for out-of-state patients seeking abortions?

Democratic lawmakers and governors in states such as New York and California are trying to make their states safe havens for people looking to have abortions by funding abortion access funds.

A number of states also are looking to protect clinicians from civil and criminal liability for caring for out-of-state patients via telehealth, with Connecticut Gov. Ned Lamont, a Democrat, signing such protections into law just days after POLITICO released a draft opinion from Justice Samuel Alito.

Linda Prine, a family physician and abortion doctor in New York, pushed state lawmakers to enshrine liability protections in the law for clinicians providing telemedicine in New York across state lines. Those didn’t pass before the legislative session ended in early June, and advocates are now pushing Gov. Kathy Hochul, a Democrat, to take action.

“There are a bunch of doctors like me who are planning to provide telemedicine abortion across state lines if we can,” Prine said.

It’s unclear whether providers will be able to handle out-of-state demand, Prine said. Whether they can or not will hinge on how many states adopt liability protections for abortion providers, Prine said.

How will some red states crack down on access?

Most efforts to target abortion access have focused on providers, not people having abortions. Sue Swayze Liebel, state policy director for anti-abortion rights group Susan B. Anthony List, said states will focus on pharmaceutical companies and groups providing virtual abortions, not individuals having abortions.

Privacy and legal organizations, virtual abortion groups and abortion-rights advocates fear that law enforcement could use broad warrants for information like Google searches and phone location data to find people seeking abortion care. Meanwhile, telehealth abortion groups are strengthening their privacy defenses.

Some states could move to punish people traveling to other states for legal abortions and returning to their home states, said Mary Ziegler, a professor at the Florida State University College of Law and an expert on the legal battle over abortion.

“The easiest people to enforce it against would be patients doing these searches on their phones or laptops,” Ziegler said. “States at the moment … are saying they’re not going to punish patients, but they’ll find it would be easier to punish patients and therefore might ultimately decide to change their minds on that subject.”

Many of the looming legal battles are expected to center around abortion pills, which pose a number of novel issues, including whether states can punish individuals for getting abortions in other states.

“It’s just really, really hard to say how it’s going to come down,” Donley said.

What’s the FDA’s role in this?

Pharmacies are still waiting on FDA guidance for how to become certified to distribute medication abortion, which could come later this year. The FDA could also remove restrictions on mifepristone requiring prescribers and distributors to become certified. It also could go further and use its powers to argue that the states can’t regulate it more tightly than the FDA because federal law preempts state law, Donley said.

The FDA is “theoretically the primary regulator” over abortion medication, and some would argue it’s the only regulator of it, Donley said.

“We don’t really have a guidebook for how this is going to play out because the states are seeking to essentially ban a medication, at least for the use of abortion, that has been approved by the FDA,” Sobel said.

The FDA could also make the pills available over the counter, though that may be decades away, Donley said alongside two other law professors in a POLITICO Magazine piece.

Ruth Reader contributed to this report.

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