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The Supreme Court Doesn’t Hold All the Power When It Comes to Abortion Rights. Here Are 2 Things the Biden Administration Can Do to Extend Access

6 minute read
Rebouché is the interim dean of Temple University's Beasley School of Law and the James E. Beasley professor of Law.

All eyes are on new appointments to President-elect Joe Biden’s Administration, with great speculation about which policies those appointees will change first. In particular, reproductive-rights supporters wonder what protection the Biden Administration can provide for abortion now that the Supreme Court has six votes to overturn or to further eviscerate the core holding of Roe v. Wade. But the Supreme Court is not the only forum for protecting abortion access, and new leadership for executive agencies matters more than has been popularly discussed. The Biden Administration could take two related actions–one right after taking office and one a few months later–that would help provide early and safe abortion to many thousands of people.

First, the government could stop defending regulatory limits on dispensing medication abortion, which have been fiercely litigated during the COVID-19 pandemic. Medication abortion requires patients take two pills within the first 10 weeks of pregnancy. The FDA tightly regulates one of those drugs, mifepristone, with safety restrictions that otherwise apply to drugs that need close medical supervision. Specifically, the FDA requires patients to pick up mifepristone at a clinic, physician’s office or hospital while prohibiting pharmacies from distributing the drug or physicians from sending it to patients by mail.

Decades of research have confirmed that those FDA restrictions provide no health benefits. Medication abortion is extremely safe, and requiring in-person distribution does not protect patient safety. There is no requirement that patients actually take mifepristone at a health care facility, so patients are usually at home and not at a clinic even if a complication were to arise.

In July, a federal district court suspended the FDA’s in-person requirement because of the pandemic. The court’s order permits providers to use mail-order pharmacies or mail mifepristone directly to patients, thus allowing remote care across a number of states. Physicians can also provide counseling and instructions online or by telephone, just as so many physicians providing care in other areas have done during the pandemic.

As the federal court recognized, remote delivery of abortion protects people from contracting the coronavirus and reduces the difficulty of arranging transportation, childcare and time off work. Those challenges, as the court noted, fall heaviest on low-income people and people of color, who make up the majority of abortion patients and have been hit hardest by the pandemic.

The court also highlighted the FDA’s contradictory treatment of abortion as compared to almost all other drugs. The FDA does not mandate in-person delivery for the exact same chemical compound when used for a different treatment, and it has suspended restrictions, such as patient pickup, for far more risky drugs (certain opioids, for example).

Just this month, the solicitor general asked the Supreme Court, for a second time, to stay the district court’s ruling. The Trump Administration has defended the FDA’s rule with contradictory, and even laughable, arguments. Ignoring well-known evidence of escalating COVID-19 infections and deaths, the briefs supporting the FDA have claimed that pandemic-related threats to patients’ health have disappeared. So, on the one hand, the Trump Administration has argued that in-person care (with attendant travel and other arrangements) is safe, when evidence points to the contrary and, on the other hand, that a mifepristone is unsafe, when evidence confirms it can be administered safely and effectively through remote professional oversight.

Second, President-elect Biden should appoint an FDA commissioner who would initiate an administrative process that permanently repeals restrictions on medication abortion. All of the evidence the FDA needs to conduct a thorough scientific review exists and has existed for years.

Due to the district court’s ruling this summer as well as an ongoing investigational study (which has an exemption from the FDA rule), providers in an estimated 20 states and Washington, D.C., currently administer abortion via telemedicine to patients in their states. Virtual clinics, many established in the last year, offer abortion care through video conference, text or telephone calls. Providers in various states have implemented “no-touch” policies, assessing the suitability of remote abortion care for patients and delivering counseling through protocols that have been tested in national trials. Under the supervision from certified providers, online pharmacies mail the medication to patients’ homes.

Removing federal restrictions on medication abortion would encourage the expansion of virtual clinics. Virtual clinics’ services cost less, protect privacy, increase convenience and reduce delay without compromising the efficacy or quality of care. Patients in places like Minnesota, where the state’s handful of abortion clinics cluster in major cities, no longer have to drive long distances to pick up a safe and effective drug before driving back home to take it.

Separate from the FDA’s rule, however, states in roughly half of the country require health care providers to deliver medication abortion in person, perform pre-termination ultrasounds or conduct mandated counseling at clinics. But by lifting the nationwide FDA restriction, the new Administration would encourage the growth of remote abortion services in the other half the country that allows remote abortion care, which could have interstate effects. Online pharmacies and new technologies designed for physician-patient consultation have created an infrastructure for abortion services that could transcend some states’ in-person requirements or might blunt the effects of outright bans were the Supreme Court to abandon constitutional abortion rights.

Measures like remote abortion have limitations; they depend on people having internet service, phones or computers, for one. And removing FDA restrictions will not fix everything; medication abortion is only an option early in pregnancy, and some states will continue to restrict abortion access at every turn. But both would be good starts. The Biden Administration’s action on this issue would show solidarity with a national movement, which includes the demand of 21 attorneys general and more than 100 federal and state legislators, to stop enforcing the FDA rule and to rethink the delivery of abortion services. The United States government can protect abortion rights, and change the map of abortion access, even if the Supreme Court undermines its constitutional precedents.

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