Shortly after the Supreme Court announced its decision overturning Roe v. Wade, the landmark case that legalized abortion in the U.S., staff from Whole Woman’s Health, which runs abortion clinics in five states, had to cancel the hundreds of patient appointments in Texas.
Despite Friday’s ruling, WWH’s medication-abortion-by-mail program “is here to serve you,” CEO Amy Hagstrom-Miller said in a press conference. Additionally, so will another WWH program that offers to help people find their way from states where they’re denied a medical abortion to a state where they can get one.
Following the court’s decision to overturn nearly 50 years of legal precedence ensuring the constitutional right to an abortion, the fight over reproductive care access is shifting to the state level. There, some states are trying to clamp down on medication abortions. Texas was one of more than a dozen states that had planned to abruptly halt abortions following the court ruling.
But these states face steep challenges on the enforcement side from the growing number of organizations, like WWH, that provide abortion not only as an in-person medical procedure but also in the form of telemedicine access to medication-assisted abortion.
So-called “abortion pills” like mifepristone, which blocks the hormone needed for a pregnancy to continue, and misoprostol, which causes uterine contractions that expel the pregnancy from the uterus, are approved by the Food and Drug Administration. The two-drug regimen can be conducted through 70 days of pregnancy and the drugs are often prescribed online and mailed to patients.
In December, the FDA lifted a requirement that patients had to obtain mifepristone in-person. Nevertheless, even before Friday’s ruling, 19 states required women to make an in-person visit to obtain the drug, per the pro-abortion Guttmacher Institute, which notes that 54% of all abortions in the U.S. in 2020 involved the pill.
Underscoring the challenges states could face, two members of President Joe Biden’s cabinet opened a new front in the battle Friday. Xavier Becerra, the secretary of the Department of Health and Human Services, announced that HHS “will double down and use every lever we have to protect access to abortion care,” including access to medication abortion.
In a statement of his own, Attorney General Merrick Garland said the Department of Justice will seek to prevent states from banning mifepristone. His remarks imply that the Biden administration could argue in court that the FDA approval of mifepristone preempts state restrictions.
Whether federal authority outweighs any state action is already the subject of a lawsuit by drugmaker GenBioPro, which sells a generic version of mifepristone, challenging Mississippi’s restrictions on medication abortion.
GenBioPro’s case, though, is complicated by the fact that Congress never explicitly said that FDA approval trumps state law, as it has done in the context of medical devices. Moreover, pharmaceutical companies seeking to push back on states’ restrictions on medication abortion could run into obstacles at the Supreme Court, which has generally viewed with skepticism the argument that state law is superseded by FDA approval.
Meanwhile, access to abortion pills will now differ by state. Some of the “trigger ban” states are seeking additional restrictions on abortion pills or proposing to ban them altogether, while other states are expanding and protecting access.
As access to abortion care and medication continues to get more complicated, providers of virtual abortion say they’re bracing for a greater influx of patient requests.
“We anticipate a growing number of inquiries from patients in the states we serve, including California, Colorado, Illinois and now New Mexico, as well as from patients in restricted states,” Adam said by email.
Adam added that the company plans to offer services in every state where it can safely and legally provide abortion care by the end of 2023.
“Choix has recently expanded its clinician team in anticipation of growing demand and plans to continue to focus on providing care during this critical time for reproductive rights and access” she said.