FDA Lifts Abortion Pill By Mail Ban As Court Weighs Roe Challenge

WASHINGTON, DC — Conservative states are mobilizing against a decision Thursday by the federal government to allow patients to receive abortion pills by mail instead of requiring them to get the pills from hospitals, clinics or doctors’ offices.

The Food and Drug Administration action means abortion pills can be prescribed through telehealth providers, and they can be received in the mail.

Previously, the pills could not be mailed, though that rule requiring in-person prescriptions was temporarily suspended in April, an action that was intended to remain in effect through the duration of the pandemic. The FDA on Thursday made the change permanent.

The FDA action comes amid a deeply polarizing debate on abortion rights, under the most serious threat since the Supreme Court legalized the procedure in all 50 states in the 1973 Roe v. Wade ruling. The 6-3 conservative majority has signaled an interest in at least curbing access to abortion, if not overturning Roe and sending the issue back to states to decide.

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In September, the court allowed Texas to implement a law that bans abortion after six weeks — before many women realize they are pregnant. Earlier this month, the justices heard arguments in a case on Mississippi’s 15-week abortion ban that asks the court to overturn Roe v. Wade.

If that happens, more than two dozen state legislatures are poised with so-called trigger laws that ban abortion within their jurisdictions, or allow to take effect laws like the one in Texas that are so restrictive they all but ban the procedure.

Even with the FDA action, women in 19 conservative states, mostly in the South and Midwest, will face obstacles obtaining the pills because telemedicine visits medication abortion are already illegal there, The New York Times reported.

Another half dozen states banned abortion pills by mail this year after the FDA temporarily suspended the requirement for in-person visits, and four passed laws shortening the gestation period for taking the pills from 10 weeks, The Times reported.

The decision drew sharp responses from abortion rights advocates and abortion foes.

“With Roe v. Wade hanging by a thread, it is especially urgent that the federal government do everything in its power to expand access to this medication,” Julia Kaye, a staff attorney for the American Civil Liberties Union, told The Washington Post.

The ACLU sued the FDA earlier this year, arguing the in-person prescription requirement exposed patients who wanted an early abortion or miscarriage treatment to unnecessary risks of contracting COVID-19.

Susan Liebel, the state director for the Susan B. Anthony List, an anti-abortion group, told The Post that the suspension of the in-person visit requirement is riskier still.

“The further along in the pregnancy that you use the pills, the greater the complications, the greater the failure rate and then the greater opportunity to get infected or end up in the emergency room,” Liebel said.

The FDA approved the two-drug cocktail of mifepristone and misoprostol in 2000. The first medication blocks the hormone progesterone, preventing the pregnancy from growing, and the second, taken either right away or up to 48 hours later, empties the uterus. It is approved for use in the first 10 weeks of pregnancy, though The Washington Post reported it is sometimes used after the 10-week gestation period.

The method has grown in popularity in the two decades since the approval of the medications.

According to data collected by the Guttmacher Institute, a pro-choice nonprofit research and policy group, 339,640 patients received medication abortions in 2017. Those procedures represented 39 percent of all abortions that year.

From 2000 to 2018, some 3.7 million women took abortion pills, according to FDA estimates.

The Centers for Disease Control and Prevention said in a report released last month that in 2019, the most recent year for which data is available, 42 percent of all abortions — and 54 percent of abortions before 10 weeks — were medication abortions. (The report did not include data from California, Maryland and New Hampshire.)

In some states last year — including Indiana, Kansas and Minnesota — the majority of abortions are medically induced. That’s consistent with CDC data showing that 79 percent of all abortions in 2019 occurred before 10 weeks of pregnancy, which abortion rights advocates say suggests more women would choose the two-drug regimen over a clinical procedure if the option were available to them.