Last week, the Food and Drug Administration announced it would remove restrictions on medication abortions and permanently allow people to receive abortion pills by mail—a reprieve from the abortion care crisis playing out in the Supreme Court. The decision affirms the safety of medication abortions and ensures an alternative to procedural abortions where there are repressive state laws. But 19 states still require the prescribing physician to be physically present when the medication is administered, ruling out telehealth and contradicting FDA guidance. For patients in these states, including Texas where a law prohibiting medication abortions and criminalizing medication abortions after seven weeks just went into effect, accessing medication abortions still requires a trip to another state with fewer restrictions. While easing the restrictions to how abortion pills can be dispensed is a step in the right direction for people in favor of abortion rights, activists and abortion care providers say it by no means will solve the crisis if Roe v. Wade is overturned. With consistent U.S. Postal Service mail delays and local state laws allowing pharmacists to refuse dispensing medication for “moral” or religious reasons, the future of access to abortion care remains uncertain.
“There are patients in states who will still have to travel to a clinic to pick up the pills and bring them back home, which is of course, totally unnecessary,” says Kirsten Moore, director of Expanding Medication Abortion Access Project.
For KT, an organizer with Buckle Bunnies Fund, a Texas abortion mutual aid collective, access to misoprostol was critical when they found out they were five-to-six weeks pregnant at the end of August. It was a few days before Senate Bill 8 passed and they already had misoprostol on hand. They had been prescribed the pills from Plan C Pills, a resource for information on abortion pills, through advance provision, when medication is provided before it is immediately needed, in an effort to stay safe.
“I knew Senate Bill 8 was coming and it was going to be really hard to access abortion,” they say. “As a precaution, I wanted to have them on hand.”
KT took misoprostol in the comfort of their home, with the company of their cat and while they were able to lay in their bed and have privacy; something that was not afforded to them during the procedural abortion they had in 2017.
“It was really nice actually. I honestly preferred my experience being at home,” they say. “When I was in the clinic, I had to go through the entire process by myself.”
At the clinic, KT went alone and was surrounded by other patients who were accompanied with partners or parents. KT did not feel comfortable telling anyone about their decision to have an abortion at that time in their life.
“I remember just being in that clinic made me feel worse than I wanted to, even though I knew that this was something that I wanted to do and needed to do,” they say. “But this time around, I just took the pills and watched X-Files on Netflix.”
The next day, they were back to work with Buckle Bunnies helping patients access abortion care.
In 2019, The FDA approved a risk evaluation and mitigation strategy (REMS) for mifepristone, the first of two pills that are part of the medication abortion protocol, in which the pills had to be ordered, prescribed, and dispensed in person. This meant patients could not be prescribed mifepristone through telehealth or receive it through the mail. For patients who were in states with strict laws such as Texas’ Senate Bill 8, which bans most abortions after six weeks, this meant one less option for abortion care and having to spend money on traveling to another state. According to data collected by the Guttmacher Institute, as of Nov. 8, states that do not border Texas and the District of Columbia saw an increase of the number of abortions provided to Texans. Out of the 28 states surveyed, their findings include states that are hundreds and thousands of miles away from the Texas border.
In May of this year, the FDA relaxed its guidelines and lifted in-person dispensing requirement, easing access to self-managed abortions. After a full review of the REMS program, the FDA officially determined on Dec. 16 that mifepristone can be prescribed through telehealth, mailed, and dispensed at pharmacies, including even brick-and-mortar pharmacies. But, physicians say there are still barriers including a certification process that they consider to be “not medically necessary.”
“While the in-person requirement lift is a win for access to medication abortion, there are still a lot of barriers,” says Dr. Jennifer Villavicencio, lead for equity transformation at the American College of Obstetricians and Gynecologists. “The certification process is a pretty big administrative burden. The landscape is extraordinarily complex and we have a lot of work to do. This is just one step along the way of ensuring that we have equitable access to mifepristone in this country, and that people have the ability to end their pregnancy how, and when, they want to.”
While the USPS confirmed in October that one-to-two days will be added to first-class mail, Moore assures that these delays will not have any impacts on patients seeking medication abortion care. According to Moore, in the recent months as a result of the FDA’s decision to lift the in-clinic distribution requirement during the pandemic, patients received their medication in a timely fashion, and “at their convenience.” But it took KT three weeks to receive their pills from Europe. Most people do not know they are pregnant until four-to-five weeks, leaving a brief window of legality for the pills to arrive.
According to Dr. Ushma Upadhyay, associate professor at the University of California, San Francisco’s collaborative research group Advancing New Standards in Reproductive Health, who works with three virtual clinics offering medication abortion, they offer the option for expedited shipping through FedEx and UPS, in the case of an emergency.
“It’s really important that while we’re talking about regulations that affect tons of people, we always work to try to individualize care,” says Villavicencio. “I think about what’s going on in the place that I’m providing abortion care. So we make sure that each individual patient is cared for depending on their circumstances, where they live, and what’s going on in the rest of the world. So even if there are significant mail delays, hopefully with this increase in availability of the medication there will be more options for people to be able to access the mifepristone.”
In seven states—Georgia, Arizona, Arkansas, Idaho, South Dakota, Missouri, and Texas—pharmacists can also refuse service due to moral or religious reasons. In Texas, mifepristone and misoprostol, the second part of the medication abortion protocol that is used for inducing an abortion, can only be dispensed by a physician. However, pharmacists are still capable of refusing to dispense the pills for personal reasons. The FDA has approved misoprostol to treat stomach ulcers, but according to Dr. Ghazaleh Moayedi, an abortion provider and founder of Pegasus Health Justice Center, pharmacists across Texas are being told not to fill prescriptions for misoprostol or mifepristone until they can verify that the medication is not intended to induce abortion.
“A person who appears to be male will be able to pick it up without question-but female presenting folx will now be interrogated on diagnosis prior to dispensing,” Moayedi tweeted last week.
According to Tim Tucker, the executive director and secretary of the Texas State Board of Pharmacy, they have not issued any guidance in the situation.
“Every prescription that a pharmacist receives is a request to be filled and each one of them must use their professional judgment to decide whether to fill or not fill the script,” he says.
Advocates say they will continue to work toward regulation of mifepristone that reflects medical and scientific evidence.