By: Bailey Pasho-Towns
The United States Supreme Court listened to arguments for Dobbs v. Jackson Women’s Health Organization on December 1, 2021, which will determine if the Supreme Court is going to overturn Roe v. Wade.[1] The Mississippi law under review makes most abortions illegal after fifteen weeks of pregnancy.[2] Lower courts found that the law was plainly unconstitutional under Roe, which forbids states from banning abortions before viability, or twenty-three weeks.[3] Nonetheless, the Supreme Court has been provided the opportunity, through Dobbs, to either reaffirm or overturn Roe.
While states wait in anticipation for the Supreme Court’s decision, citizens of states that have enforced restrictions on abortions have discovered a new path to accessing abortions—telemedicine.[4] During the pandemic, many doctors closed their physical offices and operated exclusively over the phone or computer. Doctors began conducting all business that did not have to be done in-person through phone and zoom calls, which included providing abortion pills.
During the pandemic, the F.D.A. temporarily lifted the requirement that women see their doctors in-person before being prescribed mifepristone, the first of the two drugs used in medication abortions.[5] In December 2021, the F.D.A. decided to permanently lift the in-person requirement.[6] The F.D.A.’s actions allow women to obtain abortion medication without going into their physical doctor’s offices, or even seeing their own doctor. The pandemic highlighted the need for telemedicine, and now abortion through telemedicine is growing. Research suggests that sixty percent of abortion patients that were eligible to receive abortion medication over surgery chose to do so.[7]
Because the F.D.A. permanently lifted the in-person requirement, certified doctors began prescribing the abortion medication through zoom calls. Organizations such as TelAbortion and Aid Access even allow women to consult on abortion medication with licensed doctors and after the consultation, the doctors will mail the medication to the patient. For TelAbortion services, doctors do not have to practice in the state where the medication is mailed, they must only be licensed there.[8] Similarly, the patients do not have to live in that state, they just have to be in the state where the medication is going to be mailed at the time of the video call and provide an address in that state.[9]
These organizations are appealing to working women or stay-at-home mothers because they allow women to obtain abortion medication without going to a physical doctors’ office. Telemedicine is also extremely vital to women who live in rural or underserved areas that have to travel long distances to access medical care. Without Telemedicine, these factors can lead to women losing the ability to utilize abortion medication because the pills can only be taken up to ten weeks’ gestation.[10] Because individuals seeking abortions have begun to use Telemedicine as a way to work around their state’s laws, states against abortions have recently been targeting abortion medication through legislation, despite there being no actual safety concern.
Since the F.D.A. lifted the in-person requirement to access abortion pills and individuals have been able to gain access to abortions much easier, states have used the time awaiting the Dobbs decision to test their boundaries and further restrict abortion rights. Telemedicine, specifically, has become a target by anti-abortion states. To date, 19 states have banned telemedicine visits for abortion and others have passed legislation to curtail access to abortion medication.[11] Last year, after Texas passed the fetal “Heartbeat” bill, which bans abortions as early as six weeks, surgical abortions in Texas dropped by half.[12] The only way for women to receive abortions was to access abortion medication by using Telemedicine services. Women in Texas were able to cross state lines, such as to New Mexico, to receive the medication and work around the rigid abortion restrictions in Texas. Organizations, like TelAbortion, are aware that women are crossing state borders to access the medication because they live in states that restrict the pills.[13] The week the “Heartbeat” bill was enforced, abortions through pills increased from 11 to 138 a day.[14] In response, Texas passed new legislation to combat abortion pills. Texas SB 4 made it a felony to provide abortion medication through the mail. The bill also set forth guidelines for doctors that did prescribe abortion pills to patients, such as informing patients that abortion increases the risk of breast cancer.[15] Although doctors, such as Dr. Kumar, provide there is no actual link or evidence to suggest abortions cause breast cancer, Dr. Kumar claims this places additional weight on a patient who has a family history of breast cancer and is already making a difficult decision.[16] Other states, however, such as New York, are passing legislation to protect the accessibility to abortion pills. Specifically, New York is expected to increase the availability of this abortion method and provide women in states that restrict it the ability to travel to a state that allows abortion medication.[17]
It is clear that abortion rights, in general, are a priority of Republican states this year. As states await the decision of whether Roe will be overturned, which will likely be decided in the summertime, it is clear that states will continue to push as much legislation against abortion rights and test their boundaries for the next couple of months. Regardless of the outcome of Dobbs, this summer will determine and set the path for the right to have an abortion, the right to Telemedicine, and the right to privacy for years to come.
[1] Dobbs v. Jackson Women’s Health Organization, 141 S. Ct. 2619 (2021).
[2] Adam Liptak, Supreme Court to Hear Abortion Case Challenging Roe v. Wade, N.Y. Times (May 17, 2021), https://www.nytimes.com/2021/05/17/us/politics/supreme-court-roe-wade.html.
[3] Id.
[4] Kate Zernike, Abortion Pills, Once a Workaround, Are Now a Target, N.Y. Times (April 6, 2022), https://www.nytimes.com/2022/04/06/us/abortion-pills.html.
[5] Id.
[6] Pam Belluck, F.D.A. Will Permanently Allow Abortion Pills by Mail, N.Y. Times (Dec. 16, 2021), https://www.nytimes.com/2021/12/16/health/abortion-pills-fda.html.
[7] Pam Belluck, Abortion by Telemedicine: A Growing Option as Access to Clinics Wanes, N.Y. Times (June 29, 2020), https://www.nytimes.com/2020/04/28/health/telabortion-abortion-telemedicine.html.
[8] Id.
[9] Id.
[10] Belluck, supra note 6.
[11] Id.
[12] Zernike, supra note 4.
[13] Id.
[14] Id.
[15] Id.
[16] Id.
[17] Belluck, supra note 6.
