I Introduction
The COVID-19 pandemic catalyzed a transformation of abortion care. For most of the last half century, abortion was provided in clinics outside of the traditional health care setting.Footnote 1 Though a medication regimen was approved in 2000 to terminate a pregnancy without a surgical procedure, the Food and Drug Administration (FDA) required, among other things, that the drug be dispensed in person at a health care facility (the “in-person dispensing requirement”).Footnote 2 This requirement dramatically limited the medication’s promise to revolutionize abortion because it subjected medication abortion to the same physical barriers as procedural care.Footnote 3
Over the course of the COVID-19 pandemic, however, that changed. The pandemic’s early days exposed how the FDA’s in-person dispensing requirement facilitated virus transmission and hampered access to abortion without any medical benefits.Footnote 4 This realization created a fresh urgency to lift the FDA’s unnecessary restrictions. Researchers and advocates worked in concert to highlight evidence undermining the need for the in-person dispensing requirement,Footnote 5 which culminated in the FDA permanently removing the requirement in December 2021.Footnote 6
The result is an emerging new normal for abortion through ten weeks of pregnancy – telehealth – at least in the states that allow it.Footnote 7 Abortion by telehealth (what an early study dubbed “TelAbortion”) generally involves a pregnant person meeting online with a health care professional, who evaluates whether the patient is a candidate for medication abortion, and, if so, whether the patient satisfies informed consent requirements.Footnote 8 Pills are then mailed directly to the patient, who can take them and complete an abortion at home. This innovation has made earlier-stage abortions cheaper, less burdensome, and more private, reducing some of the barriers that delay abortion and compromise access.Footnote 9
In this chapter, we start with a historical account of how telehealth for abortion emerged as a national phenomenon. We then offer our predictions for the future: A future in which the digital transformation of abortion care is threatened by the demise of constitutional abortion rights. We argue, however, that the de-linking of medication abortion from in-person care has triggered a zeitgeist that will create new avenues to access safe abortion, even in states that ban it. As a result, the same states that are banning almost all abortions after the Supreme Court overturned Roe v. Wade will find it difficult to stop their residents from accessing abortion online. Abortion that is decentralized and independent of in-state physicians will undermine traditional state efforts to police abortion as well as create new challenges of access and risks of criminalization.
II The Early Abortion Care Revolution
Although research on medication abortion facilitated by telehealth began nearly a decade ago, developments in legal doctrine, agency regulation, and online availability over the last few years have ushered in remote abortion care and cemented its impact. This part reviews this recent history and describes the current model for providing telehealth for abortion services.
A The Regulation of Medication Abortion
In 2020, medication abortions comprised 54 percent of the nation’s total abortions, which is a statistic that has steadily increased over the past two decades.Footnote 10 A medication abortion in the United States typically has involved taking two types of drugs, mifepristone and misoprostol, often 24 to 48 hours apart.Footnote 11 The first medication detaches the embryo from the uterus and the second induces uterine contractions to expel the tissue.Footnote 12 Medication abortion is approved by the FDA to end pregnancies through ten weeks of gestation, although some providers will prescribe its use off-label through twelve or thirteen weeks.Footnote 13
The FDA restricts mifepristone under a system intended to ensure the safety of particularly risky drugs – a Risk Evaluation and Mitigation Strategy (REMS).Footnote 14 The FDA can also issue a REMS with Elements to Assure Safe Use (ETASU), which can circumscribe distribution and limit who can prescribe a drug and under what conditions.Footnote 15 The FDA instituted a REMS with ETASU for mifepristone, the first drug in the medication abortion regimen, which historically mandated, among other requirements, that patients collect mifepristone in-person at a health care facility, such as a clinic or physician’s office.Footnote 16 Thus, under the ETASU, certified providers could not dispense mifepristone through the mail or a pharmacy. Several states’ laws impose their own restrictions on abortion medication in addition to the FDA’s regulations, including mandating in-person pick-up, prohibiting telehealth for abortion, or banning the mailing of medication abortion; at the time of writing in 2023, most of those same states, save eight, ban almost all abortion, including medication abortion, from the earliest stages of pregnancy.Footnote 17
In July 2020, a federal district court in American College of Obstetricians & Gynecologists (ACOG) v. FDA temporarily suspended the in-person dispensing requirement and opened the door to the broader adoption of telehealth for abortion during the course of the pandemic.Footnote 18 Well before this case, in 2016, the non-profit organization, Gynuity, received an Investigational New Drug Approval to study the efficacy of providing medication abortion care by videoconference and mail.Footnote 19 In the study, “TelAbortion,” providers counselled patients online, and patients confirmed the gestational age with blood tests and ultrasounds at a location of their choosing.Footnote 20 As the pandemic took hold, patients who were not at risk for medical complications, were less than eight weeks pregnant, and had regular menstrual cycles could forgo ultrasounds and blood tests, and rely on home pregnancy tests and a self-report of the first day of their last menstrual period. The results of the study indicated that a “direct-to-patient telemedicine abortion service was safe, effective, efficient, and satisfactory.”Footnote 21 Since Gynuity’s study, additional research has demonstrated that abortion medication can be taken safely and effectively without in-person oversight.Footnote 22
The ACOG court’s temporary suspension of the in-person dispensing requirement in 2020 relied on this research. The district court held that the FDA’s requirement contradicted substantial evidence of the drug’s safety and singled out mifepristone without providing any corresponding health benefit.Footnote 23 The district court detailed how the in-person requirement exacerbated the burdens already shouldered by those disproportionately affected by the pandemic, emphasizing that low-income patients and people of color, who are the majority of abortion patients, are more likely to contract and suffer the effects of COVID-19.Footnote 24 While the district court’s injunction lasted, virtual clinics began operating, providing abortion care without satisfying any in-person requirements.Footnote 25
The FDA appealed the district court’s decision to the US Court of Appeals for the Fourth Circuit and petitioned the Supreme Court for a stay of the injunction in October and again in December 2020. The briefs filed by the Trump Administration’s solicitor general and ten states contested that the in-person dispensing requirement presented heightened COVID-19 risks for patients.Footnote 26 Indeed, some of the same states that had suspended abortion as a purported means to protect people from COVID-19 now argued that the pandemic posed little threat for people seeking abortion care.Footnote 27 ACOG highlighted the absurdity of the government’s position. The FDA could not produce evidence that any patient had been harmed by the removal of the in-person dispensing requirement, whereas, in terms of COVID-19 risk, “the day Defendants filed their motion, approximately 100,000 people in the United States were diagnosed with COVID-19 – a new global record – and nearly 1,000 people died from it.”Footnote 28
The Supreme Court was not persuaded by ACOG’s arguments. In January 2021, the Court stayed the district court’s injunction pending appeal with scant analysis.Footnote 29 Chief Justice Roberts, in a concurrence, argued that the Court must defer to “politically accountable entities with the background, competence, and expertise to assess public health.”Footnote 30 Justice Sotomayor dissented, citing the district court’s findings and characterizing the reimposition of the in-person dispensing requirement as “unnecessary, unjustifiable, irrational” and “callous.”Footnote 31
The impact of the Supreme Court’s order, however, was short-lived. In April 2021, the FDA suspended the enforcement of the requirement throughout the course of the pandemic and announced that it would reconsider aspects of the REMS.Footnote 32 In December 2021, the FDA announced that it would permanently lift the in-person dispensing requirement.
Other aspects of the mifepristone REMS, however, have not changed. The FDA still mandates that only certified providers who have registered with the drug manufacturer may prescribe the drug (the “certified provider requirement”), which imposes an unnecessary administrative burden that reduces the number of abortion providers.Footnote 33 An additional informed consent requirement – the FDA-required Patient Agreement Form, which patients sign before beginning a medication abortion – also remains in place despite repeating what providers already communicate to patients.Footnote 34 The FDA also added a new ETASU requiring that only certified pharmacies can dispense mifepristone.Footnote 35 The details of pharmacy certification were announced in January 2023; among other requirements, a pharmacy must agree to particular record-keeping, reporting, and medication tracking efforts, as well as designate a representative to ensure compliance.Footnote 36 This requirement, as it is implemented, could mirror the burdens associated with the certified provider requirement, perpetuating the FDA’s unusual treatment of this safe and effective drug.Footnote 37
Despite these restrictions, permission for providers and, at present, two online pharmacies to mail medication abortion has allowed virtual abortion clinics to proliferate in states that permit telehealth for abortion.Footnote 38 As explored below, this change has the potential to dramatically increase access to early abortion care, but there are obstacles that can limit such growth.
B Telehealth for Abortion
A new model for distributing medication abortion is quickly gaining traction across the country: Certified providers partnering with online pharmacies to mail abortion medication to patients after online intake and counseling.Footnote 39 For example, the virtual clinic, Choix, prescribes medication abortion to patients up to ten weeks of pregnancy in Maine, New Mexico, Colorado, Illinois, and California.Footnote 40 The founders describe how Choix’s asynchronous telehealth platform works:
Patients first sign up on our website and fill out an initial questionnaire, then we review their history and follow up via text with any questions. Once patients are approved to proceed, they’re able to complete the consent online. We send our video and educational handouts electronically and make them available via our patient portal. We’re always accessible via phone for patients.Footnote 41
The entire process, from intake to receipt of pills, takes between two to five days and the cost is $289, which is significantly cheaper than medication abortions offered by brick-and-mortar clinics.Footnote 42 Advice on taking the medication abortion and possible complications is available through a provider-supported hotline.Footnote 43 Choix is just one of many virtual clinics. Another virtual clinic, Abortion on Demand, provides medication abortion services to twenty-two states.Footnote 44 Many virtual clinics translate their webpages into Spanish but do not offer services in Spanish or other languages, although a few are planning to incorporate non-English services.Footnote 45
As compared to brick-and-mortar clinics, virtual clinics and online pharmacies provide care that costs less, offers more privacy, increases convenience, and reduces delays without compromising the efficacy or quality of care.Footnote 46 Patients no longer need to drive long distances to pick up safe and effective medications before driving back home to take them. In short, mailed pills can untether early-stage abortion from a physical place.Footnote 47
Telehealth for abortion, however, has clear and significant limitations. As noted above, laws in about half of the country prohibit, explicitly or indirectly, telemedicine for abortion. And telemedicine depends on people having internet connections and computers or smartphones, which is a barrier for low-income communities.Footnote 48 Even with a telehealth-compliant device, “[patients] may live in communities that lack access to technological infrastructure, like high-speed internet, necessary to use many dominant tele-health services, such as virtual video visits.”Footnote 49 Finally, the FDA has approved medication abortion only through ten weeks of gestation.
These barriers, imposed by law and in practice, will test how far telehealth for abortion can reach. As discussed below, the portability of medication abortion opens avenues that strain the bounds of legality, facilitated in no small part by the networks of advocates that have mobilized to make pills available to people across the country.Footnote 50 But extralegal strategies could have serious costs, particularly for those already vulnerable to state surveillance and punishment.Footnote 51 And attempts to bypass state laws could have serious consequences for providers, who are subject to professional, civil, and criminal penalties, as well as those who assist providers and patients.Footnote 52
III The Future of Abortion Care
The COVID-19 pandemic transformed abortion care, but the benefits were limited to those living in states that did not have laws requiring in-person care or prohibiting the mailing of abortion medication.Footnote 53 This widened a disparity in abortion access that has been growing for years between red and blue states.Footnote 54
On June 24, 2022, the Supreme Court issued its decision in Dobbs v. Jackson Women’s Health Organization, upholding Mississippi’s fifteen-week abortion ban and overturning Roe v. Wade.Footnote 55 Twenty-four states have attempted to ban almost all abortions, although ten of those bans have been halted by courts.Footnote 56 At the time of writing, pregnant people in the remaining fourteen states face limited options: Continue a pregnancy against their will, travel out of state to obtain a legal abortion, or self-manage their abortion in their home state.Footnote 57 Data from Texas, where the SB8 legislationFootnote 58 effectively banned abortion after roughly six weeks of pregnancy months before Dobbs, suggests that only a small percentage of people will choose the first option – the number of abortions Texans received dropped by only 10–15 percent as a result of travel and self-management.Footnote 59 Evidence from other countries and the United States’s own pre-Roe history also demonstrate that abortion bans do not stop abortions from happening.Footnote 60
Traveling to a state where abortion is legal, however, is not an option for many people.Footnote 61 Yet unlike the pre-Roe era, there is another means to safely end a pregnancy – one that threatens the antiabortion movement’s ultimate goal of ending abortion nationwide:Footnote 62 Self-managed abortion with medication. Self-managed abortion generally refers to abortion obtained outside of the formal health care system.Footnote 63 Thus, self-managed abortion can include a pregnant person buying medication abortion online directly from an international pharmacy (sometimes called self-sourced abortion) and a pregnant person interacting with an international or out-of-state provider via telemedicine, who ships them abortion medication or calls a prescription into an international pharmacy on their behalf.Footnote 64
Because many states have heavily restricted abortion for years, self-managed abortion is not new. The non-profit organization Aid Access started providing medication abortion to patients in the United States in 2017.Footnote 65 Each year, the number of US patients they have served has grown.Footnote 66 Once Texas’s SB8 became effective, Aid Access saw demand for their services increase 1,180 percent, levelling out to 245 percent of the pre-SB8 demand a month later.Footnote 67 Similarly, after Dobbs, the demand for Aid Access doubled, tripled, or even quadrupled in states with abortion bans.Footnote 68 There are advantages to self-managed abortion: The price is affordable (roughly only $105 for use of foreign providers and pharmacy) and the pregnant person can have an abortion at home.Footnote 69 The disadvantage is that receiving the pills can take one to three weeks (when shipped internationally) and comes with the legal risks explored below.
The portability of abortion medication, combined with the uptake of telehealth, poses an existential crisis for the antiabortion movement. Just as it achieved its decades-long goal of overturning Roe, the nature of abortion care has shifted and decentralized, making it difficult to police and control.Footnote 70 Before the advent of abortion medication, pregnant people depended on the help of a provider to end their pregnancies.Footnote 71 They could not do it alone. As a result, states would threaten providers’ livelihood and freedom, driving providers out of business and leaving patients with few options.Footnote 72 Many turned to unqualified providers who offered unsafe abortions that lead to illness, infertility, and death.Footnote 73 But abortion medication created safe alternatives for patients that their predecessors lacked. Because abortion medication makes the involvement of providers no longer necessary to terminate early pregnancies, the classic abortion ban, which targets providers, will not have the same effect.Footnote 74 And out-of-country providers who help patients self-manage abortions remain outside of a state’s reach.Footnote 75
The antiabortion movement is aware of this shifting reality. Indeed, antiabortion state legislators are introducing and enacting laws specifically targeting abortion medication – laws that would ban it entirely, ban its shipment through the mail, or otherwise burden its dispensation.Footnote 76 Nevertheless, it is unclear how states will enforce these laws. Most mail goes in and out of states without inspection.Footnote 77
This is not to suggest that self-management will solve the post-Roe abortion crisis. For one, self-managed abortion medication is generally not recommended beyond the first trimester, meaning later-stage abortion patients, who comprise less than 10 percent of the patient population, will either need to travel to obtain an abortion or face the higher medical risks associated with self-management.Footnote 78 Moreover, pregnant patients may face legal risks in self-managing an abortion in an antiabortion state.Footnote 79 Historically, legislators were unwilling to target abortion patients themselves, but patients and their in-state helpers may become more vulnerable as legislatures and prosecutors reckon with the inability to target in-state providers. These types of prosecutions may occur in a few ways.
First, even if shipments of abortion medication largely go undetected, a small percentage of patients will experience side effects or complications that lead them to seek treatment in a hospital.Footnote 80 Self-managed abortions mimic miscarriage, which will aid some people in evading abortion laws, although some patients may reveal to a health care professional that their miscarriage was induced with abortion medication.Footnote 81 And even with federal protection for patient health information,Footnote 82 hospital employees could report those they suspect of abortion-related crimes.Footnote 83 This will lead to an increase in the investigation and criminalization of both pregnancy loss and abortion.Footnote 84 This is how many people have become targets of criminal prosecution in other countries that ban abortion.Footnote 85
Second, the new terrain of digital surveillance will play an important role. Any time the state is notified of someone who could be charged for an abortion-related crime, the police will be able to obtain a warrant to search their digital life if they have sufficient probable cause. Anya Prince has explained the breadth of the reproductive health data ecosystem, in which advertisers and period tracking apps can easily capture when a person is pregnant.Footnote 86 The proliferation of “digital diagnostics” (for instance, wearables that track and assess health data) could become capable of diagnosing a possible pregnancy based on physiologic signals, such as temperature and heart rate, perhaps without the user’s knowledge. As Prince notes, this type of information is largely unprotected by privacy laws and companies may sell it to state entities.Footnote 87 Technology that indicates that a person went from “possibly pregnant” to “not pregnant” without a documented birth could signal an abortion worthy of investigation. Alternatively, pregnancy data combined with search histories regarding abortion options, geofencing data of out-of-state trips, and text histories with friends could be used to support abortion prosecutions.Footnote 88 Antiabortion organizations could also set up fake virtual clinics – crisis pregnancy centers for the digital age – to identify potential abortion patients and leak their information to the police.Footnote 89
These technologies will test conceptions of privacy as people voluntarily offer health data that can be used against them.Footnote 90 Law enforcement will, as they have with search engine requests and electronic receipts, use this digital information against people self-managing abortions.Footnote 91 And, almost certainly, low-income people and women of color will be targets of pregnancy surveillance and criminalization.Footnote 92 This is already true – even though drug use in pregnancy is the same in white and populations of color – Black women are ten times more likely to be reported to authorities.Footnote 93 And because low-income women and women of color are more likely to seek abortion and less likely to have early prenatal care, any pregnancy complications may be viewed suspiciously.Footnote 94
State legislatures and the federal government can help to protect providers and patients in the coming era of abortion care, although their actions may have a limited reach.Footnote 95 At the federal level, the FDA could assert that its regulation of medication abortion preempts contradictory state laws, potentially creating a nationwide, abortion-medication exception to state abortion bans.Footnote 96 The federal government could also use federal laws and regulations that govern emergency care, medical privacy, and Medicare and Medicaid reimbursement to preempt state abortion laws and reduce hospital-based investigations, though the impact of such laws and regulations would be more limited.Footnote 97 As this chapter goes to press in 2023, the Biden Administration is undertaking some of these actions.Footnote 98
State policies in jurisdictions supportive of abortion rights can also improve access for patients traveling to them. States can invest in telehealth generally to continue to loosen restrictions on telemedicine, as many states have done in response to the pandemic, reducing demand at brick-and-mortar abortion clinics and disparities in technology access.Footnote 99 They can also join interstate licensure compacts, which could extend the reach of telehealth for abortion in the states that permit the practice and allow providers to pool resources and provide care across state lines.Footnote 100 States can also pass abortion shield laws to insulate their providers who care for out-of-state residents by refusing to cooperate in out-of-state investigations, lawsuits, prosecutions, or extradition requests for abortion-related lawsuits.Footnote 101 All of these efforts will help reduce, but by no means stop, the sea change to abortion law and access moving forward. And none of these efforts protect the patients or those that assist them in states that ban abortion.
IV Conclusion
A post-Dobbs country will be messy. A right that generations took for granted – even though for some, abortion was inaccessible – disappeared in half of the country. The present landscape, however, is not like the pre-Roe era. Innovations in medical care and telehealth have changed abortion care, thwarting the antiabortion movement’s ability to control abortion, just as it gained the ability to ban it. Unlike patients in past generations, patients now will be able to access safe abortions, even in states in which it is illegal. But they will also face legal risks that were uncommon previously, given the new ways for the state to investigate and criminalize them.
As courts and lawmakers tackle the changing reality of abortion rights, we should not be surprised by surprises – unlikely allies and opponents may coalesce on both sides of the abortion debate. Laws that seek to punish abortion will become harder to enforce as mailed abortion pills proliferate. This will create urgency for some antiabortion states to find creative ways to chill abortion, while other states will be content to ban abortion in law, understanding that it continues in practice. Who states seek to punish will shift, with authorities targeting not only providers, but also patients, and with the most marginalized patients being the most vulnerable.Footnote 102
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