As the Biden administration deliberates on the federal rules on where, when and from whom patients can get the pills, with a federal court deadline looming in early April, conservatives are already erecting barriers. In court, in Congress and in statehouses across the country, they’re working to preemptively ban the pills or make them more difficult to obtain — with bills now pending in Indiana, Montana, Arizona, Arkansas, Alabama, Iowa this year alone.
“They’re trying as hard as they can to restrict access to the pills now because they know they won’t be able, later, to unring the bell,” said Mary Ziegler, a professor at the Florida State University College of Law who studies abortion. “This is just as important as what happens with Roe.”
Biden’s pledge to “follow the science” when it comes to public health is under scrutiny as medical experts argue — citing new data gained during the pandemic — that administering the abortion drugs remotely is safe and effective.
Should the federal rules get rewritten, someone in, say, Arkansas, could have a video consultation with a doctor in Massachusetts or even the UK and then receive the pills by mail. Even if red states moved to ban their importation, enforcement would be nearly impossible.
“It takes the fight out of the clinic setting into individual people’s homes,” explained Alina Salganicoff, the Director of Women’s Health Policy at the Kaiser Family Foundation. “That becomes much more difficult to regulate and could potentially broaden access.”
Women’s health and advocacy groups stress, however, that the pills are not a panacea. For one, they can only be used safely in the first 10 weeks of pregnancy — a narrow time window during which many people are not yet aware that they are pregnant. Additionally, taking the pills in a state that has banned them could be legally perilous, discouraging people from seeking medical help if they have a complication. This fear is not theoretical — already, even with Roe still in place, women have faced prosecution for self-induced abortions.
Biden may soon be forced to make a decision. A federal appeals court is hearing a challenge to the Trump administration’s decision to keep the FDA’s in-person dispensing requirement for the pills in place during the pandemic, and Biden’s DOJ must tell them by April 7 whether or not it plans to keep enforcing those rules.
Even if the Biden administration were to choose to defend the Trump rule, there’s a burgeoning online underground market for the pills which, like its counterparts in the formal health care system, has seen surging popularity during the pandemic.
Abortion opponents are already sounding the alarm about this potential wild west.
Congressional Republicans have for years raised concerns about the safety of the pills, sending letters pushing the FDA to take action against the drug and the online sellers who offer it. The most recent letters came last year, as nearly a hundred Republicans from each chamber of Congress urged the agency to take the drug off the market entirely.
Now that the administration is considering lifting the federal restrictions on the pill, conservatives are worried the state-level bans they’re rushing to enact won’t be enough.
“Chemical abortion really puts Roe vs. Wade on steroids,” said Kristi Hamrick with the anti-abortion group Students for Life of America. “Roe made abortion possible anywhere in the country during all nine months of pregnancy, but this is really a new frontier — doing it virtually and chemically.”
But for advocates like Silvia Henriquez, the co-president of the abortion rights group All* Above All, looser federal rules for the pills is part of a long-held goal.
“We are working towards a future where abortion care is there when we need it, where it’s affordable, accessible and on our own terms, without barriers,” she said. “Medication abortion gets us closer to that world — where it doesn’t matter who we are, how much we earn, or where we live.”
As conservative states have moved aggressively in recent years to restrict access to surgical abortions, passing hundreds of laws that have set limits on when, where and how people can have the procedure, demand for the cheaper and more convenient abortion pills has soared — including online, where patients have obtained the drug from underground marketplaces as well as approved vendors. In 2001, the drugs were used in just 5 percent of abortions in the U.S. By 2017, that jumped to 39 percent, according to the Guttmacher Institute. The increase came even as the total number of abortions dropped significantly.
Scientists and doctors are increasingly supportive of medication abortions and have long called for scrapping the rules dictating that patients pick them up in person even if they don’t swallow them until they get home. They say it’s a particularly pressing concern during the pandemic, when the government has moved to limit in-person dispensing — and promote telemedicine — for nearly every other drug.
Jen Villavicencio, an abortion provider and health policy fellow with the American College of Obstetricians and Gynecologists, told POLITICO that she started going from car to car seeing patients in her clinic’s parking lot and dispensing the pills after the Supreme Court intervened in January to restore the Trump administration rules that for several months had been blocked by lower courts.
“We were trying to avoid interactions with other people to try to quell the rising numbers of Covid-19 cases,” she said. “Many medications that have much higher risk profiles were allowed to remove the in-person requirement because of the pandemic. But that courtesy and safety measure was not offered to people who were seeking abortion care or miscarriage management.”
Medication abortion relies on two pills — misoprostol, which is lightly regulated, and mifepristone, which has been more tightly regulated by FDA since its introduction in the market decades ago.
Yet mifepristone “has very few risks at all,” argues Villavicencio. “It is more safe than over-the-counter medications like ibuprofen and Tylenol. We know this medication can be safely administered via telemedicine because we’ve studied it.”
ACOG, along with the American Medical Association and other leading medical groups, has been lobbying the Biden administration and arguing in court that the federal rules for dispensing the pills should be loosened. Their push has been echoed on Capitol Hill, where Democratic lawmakers have urged Biden to allow telemedicine abortions both during the pandemic and beyond.
But the decision still presents a political quandary for Biden, who until recently was relatively conservative on abortion for a Democratic politician.
The president has yet to take a position on the pills. When pressed by the New York Times in 2019 as part of a Democratic primary questionnaire on whether the medications should be over-the-counter, Biden gave a noncommittal answer, unlike several of his then-competitors, like Sen. Elizabeth Warren, who urged easier access to the pills.
Asked where it stands on the dispensing requirements on the drugs, the Department of Health and Human Services declined to comment, citing the ongoing litigation. But Xavier Becerra, California’s Attorney General who is awaiting confirmation to lead HHS, last year led a coalition of 21 Democratic AGs in petitioning the FDA to allow telemedicine abortions at least for the duration of the pandemic.
“Forcing women to unnecessarily seek in-person reproductive healthcare during this public health crisis is foolish and irresponsible,” he wrote at the time.
As they await a decision, abortion rights opponents are fighting on two fronts: pushing Congress, state lawmakers and the FDA to enact restrictions on the pills or ban them entirely while also seeking to convince the public that the pills are dangerous.
For the last three years, groups including Students for Life of America have bought ads online and on TV, created mini documentaries, sponsored events on college campuses, and trained members to testify before their state legislatures about possible complications and side effects of the pills and the danger that women could be pressured or tricked into taking them without consent.
With easier telemedicine access to the pills, conservatives warn, even the fall of Roe vs. Wade wouldn’t curb their use in states that choose to ban abortion.
“There’s always been an issue of people crossing state lines, in order to do things that might be illegal,” said Roger Severino, a former top official in Trump’s HHS now working for a think tank. “It all depends on how the Biden administration reacts: if it fulfills its responsibility it’ll clamp down on the black market for it.”
Conservative fears around mifepristone are nothing new. When the drug was first introduced in the 1990s, politicians including George W. Bush worried the medication would popularize the practice.
Evidence since then — and especially during the pandemic — has borne those fears out. The popularity of so-called teleabortions has increased in the U.S. for years — long before the pandemic — both through the established health care system as well as more informal, underground groups. A January 2020 study in the American Journal of Public Health, for example, found increasing demand for one domestic teleabortion service operating underground in states where state restrictions on in-person abortion clinics increased. The federal government has also been seizing more pills shipped in from abroad, according to a POLITICO analysis of data on the FDA’s seizures of misoprostol and mifepristone obtained through the Freedom of Information Act.
In 2008, FDA intercepted nine shipments of abortion drugs, according to the FDA data obtained by POLITICO; in 2018, just a decade later, there were 26. The agency’s annual totals have varied widely from year to year: a low of 5 in 2015, followed by rises during the Trump administration of 19 in 2017 and 26 in 2018. The number fell to 10 in 2019, the last year for which information is available.
The shifting landscape overseas for access to mifepristone is a potential indicator of how widespread the practice of teleabortion could become in the U.S., whether it gains new footing legally under the Biden administration or is kept underground.
In the United Kingdom, the not-for-profit group MSI Reproductive Choices performed some 16,750 abortions through telemedicine alone in 2020 after the government loosened restrictions on the practice. (The country typically has around 200,000 abortions per year.) A new study of the pandemic year in the British Journal of Obstetrics and Gynecology says the practice has been successful: patients wait on average 4 days fewer to get an abortion, with little difference from in-person abortions in safety or effectiveness.
Jonathan Lord, the chief medical officer of the group, says the increased ease in obtaining the medications has had the effect of expanding access to abortion generally. When women had to go in-person to pick up the pills, many vulnerable women — such as those being abused at home — were too fearful to make the trip, worrying that their partners would discover what they were doing.
Now, the health care system can coordinate with social workers and police for people in the group. “They’re also the group we would really, really, really like to engage with,” Lord said. “That’s where telemedicine has really helped.”
The change has also diminished the importance of some of the underground groups.
Women on Web, the most prominent international group providing abortion pills through the mail outside of formal health care channels, got contacts from 0 patients in the the U.K. during the first few months of the pandemic — down from 35 or 40 a month. In a study of eight European countries, the group generally found surging demand for its services during the pandemic year — unless the country allowed for more teleabortion.
No matter what decision Biden and other policymakers make in the coming months, these trends are likely to continue long after the threat of Covid-19 has passed. The medication is likely to be the future of the abortion wars, if only because it’s the future of abortion.
“There are so many direct and indirect ways that states have moved to limit access to surgical abortion — from waiting periods to parental notification and requirements for special licenses — and I anticipate they would be equally creative with medication abortions,” Salganicoff said. “Whether they can stop every pill from coming across the border is another story.”