SCOTUS Issued a Blow to Abortion Pills by Mail, But Advocates Aren’t Giving Up

There has been a quiet revolution in access to abortion pills in the United States over the past six months — and whether it continues depends on the new Biden-Harris administration.

Last July, a federal court suspended a rule that requires patients to go to a health center in person to pick up mifepristone, the first pill in a two-step process for medication abortion. The court sided with SisterSong Women of Color Reproductive Justice Collective and the American College of Obstetricians and Gynecologists, allowing providers to mail mifepristone during the COVID-19 pandemic. But on January 12, the Supreme Court reinstated the rules, leaving in doubt the future of a landscape which advocates like Elisa Wells, co-founder of the medication abortion advocacy group Plan C, had rapidly begun to put in place.

“As soon as that court case hit, we called the lawyers and we said we’ve got providers and a pharmacy ready to do this, what do we need to know?” Wells told Truthout. “And I mean their jaws just dropped, they said, ‘Oh my God, how could you be so on the ball, ready to do this?’”

While people in the United States have long managed their own abortions using pills purchased from overseas, the ruling last summer sparked a new set of options based in the United States. Soon, with the help of groups like Plan C, Honeybee Health became the first U.S.-based pharmacy to ship abortion pills by mail to patients here. Primary care doctors in abortion-friendly states started shipping medication abortion pills via the postal service. New online clinics began offering telehealth consultations and abortion by mail in states with laws that permitted it: Hey Jane in New York and Washington State, Just the Pill in Minnesota and Choix in California. The TelAbortion Study, which provides medication abortions by mail as part of a research project, expanded its network to 14 states and D.C.

“It’s a systematic, capitalist version of what was already happening in the weeds,” said Robin Marty, author of Handbook for a Post-Roe America.

But on January 12 the Supreme Court, in its first abortion-related ruling with Amy Coney Barrett on the bench, upheld the Trump administration’s request to reinstate the in-person requirement. Chief Justice John Roberts wrote that the court was assessing the narrow question of whether the lower court had acted properly when it ordered the FDA to lift its “established requirements because of the court’s own evaluation of the impact of the COVID–19 pandemic.”

In her dissent, Justice Sonia Sotomayor noted that of the 20,000 FDA-approved drugs, mifepristone is the only one the agency requires to be picked up in person to be taken at home.

“One can only hope that the government will reconsider and exhibit greater care and empathy for women seeking some measure of control over their health and reproductive lives in these unsettling times,” Justice Sotomayor wrote.

The ruling had an abrupt impact on at least some of the new online options.

“Pharmacy mailing of mifepristone has been put on hold for the immediate future,” a pop-up on the Choix website now reads. “This means at that at the present moment, we will not be able to provide medication abortion services.”

The ACLU said the ruling would particularly harm people of color and low-income people who “make up the majority of impacted patients and who are suffering severe complications and dying from COVID-19 at disproportionately high rates.”

“With today’s ruling, the Supreme Court told people of color that unnecessary risk of exposure to a virus that is disproportionately killing our communities is a fair price to pay for access to abortion,” Monica Simpson, executive director of SisterSong, said in a statement.

Advocates are calling for the Biden-Harris administration to suspend the in-person requirement during the pandemic — and then review the way the Food and Drug Administration regulates mifepristone moving forward.

“It’s up to the Biden-Harris administration to not only undo this damage they are inheriting, but also take bold affirmative action to advance reproductive justice,” Simpson’s statement said.

On Biden’s first day, however, his administration disappointed reproductive justice advocates when spokesperson Jen Psaki refused to say whether Biden would act to repeal the ban on federal funding for abortion known as the Hyde Amendment. Instead, Psaki declared that Biden was a “devout Catholic, and somebody who attends church regularly.” Biden has long said he is personally opposed to abortion but would not impose that viewpoint on others; he supported the Hyde Amendment before rapidly reversing his position during the campaign following political pressure from reproductive justice groups like All* Above All.

Some health care providers note Biden has promised to break with the Trump administration by listening to scientific experts on COVID-19, and say he should apply that same policy to abortion.

“That was his pledge,” Dr. Stacey Leigh Rubin, an OB-GYN and family planning specialist in Maryland and a fellow with Physicians for Reproductive Health, told Truthout. “He was saying it with respect to Trump’s total disregard of science and medical expertise with respect to the pandemic, but I would ask him to extend that to other areas of medicine, where we have good science to guide our practice.”

The federal court injunction in July had enabled abortion providers like Rubin to protect themselves and their patients.

“[Patients] show up in the parking lot, they’ve already consented and been counseled and everything virtually over the telephone, and then I can hand them a brown paper bag that has the mifepristone, the misoprostol — which is the second step medication — a home pregnancy test so that they can check in three to four weeks that their abortion was complete, and the prescriptions or even the medications for pain,” Rubin said. “They never even need to come into the clinic or be in a high-risk environment.”

Experts like Rubin said there is overwhelming data that medication abortion is safe without an in-person visit — and the past six months have only proven that.

“We now are going to have another however many months to years of data that show that this is safe and effective and can be done safely by mail,” Dr. Diane Horvath, an OB-GYN in Baltimore, told Truthout. “The pandemic has been an opportunity to demonstrate that this is something we can and should be doing.”

Over the summer, a primary care doctor in an abortion-friendly state got a message from a former colleague.

“She was like: ‘Wanna mail mife?’ And I was like, sure,” the doctor, who spoke on the condition of anonymity to avoid anti-choice harassment, told Truthout.

Since August, the doctor has provided abortions to 130 people in her state by dropping the medications off at the post office. The day after the Supreme Court reimposed the restrictions on mifepristone, she was still trying to understand how she could meet the requirements while continuing to do her work — but she did not plan to stop mailing the pills. She noted that attorneys general in 22 states and D.C. had opposed the in-person requirements in an amicus brief to the Supreme Court, making it unlikely these officials would prosecute doctors like her. Among the attorneys general who signed onto the brief in favor of abortion access by mail during the pandemic was former California Attorney General Xavier Becerra, Biden’s pick to head the Department of Health and Human Services, which oversees the FDA.

Even with the rules back in place, not everyone interprets their impact the same way. While the rules require mifepristone to be “dispensed to patients” only in “clinics, medical offices, and hospitals,” advocates like Wells argue that providers can meet that requirement by mailing the pills because the act of “dispensing” can include preparing pills and dropping them at the post office.

The Biden-Harris administration could do away with any confusion by suspending the rules. But doing so would mean going further than the Obama-Biden administration and the Clinton administration, which first approved mifepristone for sale in the United States in 2000 but imposed restrictions like not allowing it to be picked up at a pharmacy like other medications.

“Now, 20 years later with the wealth of knowledge about its safety and effectiveness, it’s time to eliminate those barriers and just give people the access they deserve,” Wells said. “It’s evidence-based. It’s scientifically sound. It’s safe. It’s effective. It’s convenient. It’s all the things that we had hoped that abortion care would be when the pill first came on the market.”

The rapid expansion of online clinics offered a glimpse of the future — not only of new avenues for access, but of inequalities that will carry over into this new realm.

“These telehealth platforms get rid of a lot of barriers to access, but we know that financial barriers are one of the biggest issues to actually accessing abortion for most people in this country and has been for a long time, but especially during the economic fallout of COVID,” Phoebe Abramowitz, outreach director for the reproductive justice group Reprocare, told Truthout.

Abramowitz and Morgan Love launched Reprocare in 2019. They offer a healthline and financial support for patients purchasing medication abortions online. About half of Choix patients were using Reprocare funds before the Supreme Court ruling, Love said, noting that their work will continue regardless of what the Court decides about the future of legal abortion.

“It’s always legal to provide medical information based on World Health Organization protocols and it’s always legal to provide caring support to people,” Love said. “We will be able to provide the healthline regardless of the state of the legal climate around abortion.”

Marty said she ultimately expects the Biden-Harris administration to overhaul the requirements on medication abortion, leading to the reopening of online abortion clinics. But she worries that could create even more inequality in a system where access already depends on the state where a person lives. Ohio is expected to become the 19th state with an active ban on telemedicine abortion if Gov. Mike DeWine signs legislation passed by the legislature in the midst of the pandemic.

That means patients in states like California and New York will be able to access options like Choix and Hey Jane, while patients in abortion-hostile states must rely on overseas options or travel across state lines even for telehealth appointments.

If the pandemic shows nothing else, Marty said, it’s that there is a divide in the options available to people depending on the abortion laws in their state.

“When it comes to abortion-hostile states and it comes to people who don’t have money and resources, they’ll still create exactly what they need,” Marty said. “It’s just, it won’t come with all of the professionalism and verification and such that comes when you’re in a blue state.”