After the conflict legal While US-based telehealth providers and overseas sellers have raised a lot of uncertainty about the future of abortion pills, they want to make one thing clear. They are here to stay.
After the US Supreme Court overruled Roe v. Wade, virtual abortion clinics have taken on a more prominent role in reproductive health care. Before that decision, virtual abortion clinics accounted for 4 percent of abortions in the US; After the decision, the number rose to 11 percent, according to the Family Planning Association.
The ground changed for abortion pill vendors on April 8 when a ruling by Judge Matthew Kaczmaric of the Northern District of Texas denied the US Food and Drug Administration’s approval of mifepristone. The ruling overturned decades of scientific consensus about mifepristone’s safety and undermined the FDA’s decades-old approval of the drug. It also directly contradicts a decision by Washington’s Eastern District Judge Thomas Rice on the same day that U.S. officials did not use the drug.
On Wednesday, the Fifth Circuit Court of Appeals partially overruled Kacsmaryk, ordering mifepristone to remain legal — but mifepristone distribution by mail in states where it was previously legal. The decision says the drug must now be given in person, reversing changes the FDA made to ensure people can access health care.
This reversal affects a wide network of telehealth providers. During the outbreak, as the FDA eased restrictions on virtual abortion care, abortion pills were available by mail in 25 states and Washington, DC. Many of these pills are offered through services dedicated to reproductive health, including virtual clinics like Hey Jane and Chox.
These companies have been gearing up for more restrictions and are now scrambling to ensure they can operate legally without a break. To date, both Hey Jane and Choix continue to offer mifepristone pills by mail in the states they previously served.
It’s unclear, though, what will happen long-term if the mifepristone-by-mail ban continues. Even if Virtual Clinics wants to continue distributing the pills, it could run into trouble with the two major US manufacturers, Danco Laboratories and GenBioPro. David Cohen, a Drexel University law professor, said, referring to the FDA’s policy, “Unless the Biden administration issues an executive order, they will not give the pills to pharmacies by mail.” There are situations in which the agency will not take action against the distribution of unauthorized drugs.
The FDA declined to comment on whether it will exercise enforcement discretion over mifepristone-by-mail distribution.
If Mifepristone is not available to US telehealth providers, there are backup plans. A medical abortion typically consists of two pills: mifepristone and misoprostol. Mifepristone works by blocking the hormone progesterone, which is necessary for the continuation of pregnancy. Mifepristone is often referred to as the “abortion pill,” but it is misoprostol that causes uterine contractions that expel fetal tissue from the body. And since misoprostol is not subject to the recent rulings, there is a possibility that these companies may start offering misoprostol on their own if manufacturers cut off access to mifepristone. This is not ideal because the combination of pills gives good results; Misoprostol itself can cause more cramps and nausea. But for providers who decide to continue helping patients, it’s better than nothing.