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Women seeking medication abortions face increasing state restrictions as FDA weighs action

“Over the past year, we've seen states really target medication abortion in a way that we hadn't seen," Elizabeth Nash, of the Guttmacher Institute, said.
Image: Pro-choice activists supporting legal access to abortion protest during a demonstration outside the Supreme Court on March 4, 2020.
Activists supporting legal access to abortions protest during a demonstration outside the Supreme Court on March 4, 2020.Saul Loeb / AFP via Getty Images file

WASHINGTON — The coronavirus had started to shut much of the country down in March 2020 when Larada Lee found out she was six weeks pregnant.

She wanted to end her pregnancy and decided that instead of a surgical abortion, she would use medication, a process she could complete at home. This, she thought, was her best chance of limiting her exposure to Covid-19.

But Lee, then an Ohio State University student, was still forced to make a series of in-person doctors’ visits before she could get access to the drugs — all while grappling with the frightening new pandemic reality. Even then, she was still required to pick up the two-pill regimen at a health clinic, taking the first, mifepristone, there and the second, misoprostol, at home 24 hours later.

“Accessing abortion feels like one of the worst games of Tetris,” she said. “I am working full time and in school and I have hopes and aspirations for myself that would not be attainable if I was a parent.”

Women facing stay-at-home orders in other states have had an easier time getting prescriptions — through telehealth appointments. In an effort to expand access, the Food and Drug Administration temporarily eased long-standing in-person dispensing requirements for mifepristonefirst in July 2020 in response to a court order that was later reversed by the Supreme Court, and again in Aprilso that women could order the pills by mail for the duration of the pandemic.

The agency's move, along with the explosive growth in telehealth services and increase in self-managed medication abortions, sparked a flurry of legislative activity in Ohio and other Republican-led states. They further limited access to the pills, adding to restrictions on their use already in place in dozens of states around the nation.

“Over the past year, we've seen states really target medication abortion in a way that we hadn't seen," said Elizabeth Nash, state director for the Guttmacher Institute, an abortion rights group. "And so it's particularly concerning because this is a method that is safe and effective and can be easily provided through telehealth."

State prohibitions

This year alone, a half dozen states have passed laws targeting medication-induced abortion, according to Nash, and several others are advancing legislation. Arkansas, Arizona and Oklahoma enacted laws banning the mailing of mifepristone for abortions. Montana approved a measure effectively banning telehealth services for such abortions, as did Ohio, whose law is being challenged by Planned Parenthood in court.

Indiana passed legislation mandating that a patient take the first dose in the presence of a physician. The law also says abortion providers must tell patients that medication abortions can be reversed with progesterone — a claim the American College of Obstetricians and Gynecologists says is unsupported by science. That law is also being challenged by Planned Parenthood and other advocacy groups

The Texas Legislature, which passed a fetal “heartbeat bill” in May, is now expected to consider a bill to limit medication abortions once it reconvenes with a quorum for its special session. That measure also would ban the mailing of abortion pills and require doctors to examine a woman in person and ensure she’s no more than seven weeks pregnant before prescribing the medication.

Some of the recently passed measures also require women seeking medication abortions to receive pregnancy tests, ultrasounds and counseling. Meanwhile, about 20 states have laws preventing telehealth appointments for abortion pill prescriptions, and more than 30 restrict the health care providers who can write them, requiring they be doctors rather than physician assistants or nurses.

Oklahoma state Sen. Julie Daniels, who authored the medical abortion legislation, said at the time that the FDA's moves to relax requirements for the pills prompted her to act. In addition to banning the mailing of abortion pills, the legislation would require a health care provider to handle any medical complications from their use and direct the state to develop certification requirements to prescribe the drugs.

“The abortion industry is pushing the federal government to abandon those safeguards and for the FDA to cease to monitor or regulate the use within the state,” she said. “So we're scrambling to put together a regulatory framework so we in Oklahoma can track the use of these drugs, make sure they're used appropriately and track any complications of the women who use them.”

The Susan B. Anthony List, an anti-abortion group, has been working with Republicans at the state level to craft these laws. Sue Liebel, the group’s state policy director, said that her organization has been monitoring the “meteoric rise” of what she termed “chemical abortions.”

“The pandemic itself gave the abortion industry an opportunity to try to move into that telemedicine space, and that's where we've really been on the offense and the defense ever since,” she said. “States are also very aware that the FDA is looking to remove some restrictions that may actually cause the states to have to pick up the pieces."

Liebel and other anti-abortion activists contend that mifepristone is not safe for women to take unsupervised at home and argue that it’s led to many rushing to emergency rooms. But of nearly 4 million women who have taken the drug since 2000, the FDA said, there were reports of 24 associated deaths as of 2018, including two cases of ectopic pregnancy and several cases of severe sepsis. Those deaths, however, could not be causally linked to the drug with certainty because of the patients' use of other drugs or receipt of medical or surgical treatments, or their co-existing medical conditions and information gaps about their health status, the agency said.

Meanwhile, Planned Parenthood offers abortion pills through telehealth appointments in about 20 heavily Democratic states where it's legal to do so and says there's no medical reason to require prescriptions be given in person.

FDA weighing decision

Under the Biden administration, the FDA is reviewing whether to permanently lift the in-person dispensing requirement for the bills, which it could decide by December. But that move would have little impact on access for women in a huge swath of the nation because of the state-level statutory restrictions, advocates say.

“If a state law said that mifepristone must be dispensed and ingested in a physician's office, then, you know, for all practical purposes, the FDA's revised regulations would not make a difference for patients in those states,” said American Civil Liberties Union attorney Julia Kaye, who is involved in lawsuits challenging the FDA requirements.

In Missouri, which has just one remaining abortion clinic because laws targeting the procedure made it more challenging for providers to stay open, women have lost access to medication abortions.

Dr. Colleen McNicholas, chief medical officer of the clinic, Planned Parenthood of the St. Louis Region and Southwest Missouri, said that either women can get procedural abortions in her state or travel to Illinois, where abortion services are much more expansive.

Women who choose to get a procedural abortion in Missouri have to make two trips to the clinic — one for paperwork and the second for the abortion — which must be done at least 72 hours apart. So, most just make the 15-mile trip across the border to Illinois, where McNicholas operates another clinic, so they can get telemedicine appointments for abortion pills or whatever procedure they want done the same day, she said.

Dr. Colleen McNicholas, chief medical officer for Planned Parenthood of the St. Louis Region and Southwest Missouri.Reproductive Health Services of Planned Parenthood of the St. Louis Region

“Mifepristone is the only medication that they require you to receive in the clinic, but then you can self administer it at home. That doesn't make any medical sense,” she said of the FDA requirements under review. “If it is safe for you to take it home, it should also be safe for you to receive it at home and then consume it at home.”

In January, Lee, the student in Ohio, moved to California because she transferred to a different college, and found out in June that she was pregnant again. She decided to get another abortion, again choosing the medication option. She felt more comfortable with the political environment in her new home than she did in Ohio, where anti-abortion advocates protested outside her clinic — and she was now more comfortable with the process.

“Obviously everyone's situation is different,” she said. “I will say that, for me, it was good enough for me to do it twice. It was a very safe process.”