Right now the legal status of medication abortion in the U.S. rests on the desk of one Trump-appointed judge in Amarillo, Texas. Activists on both sides of the abortion debate are holding their breath. But one thing is certain: Medication abortion will carry on either way.
If Judge Matthew Kacsmaryk orders the Food and Drug Administration to rescind its approval for mifepristone, one of the two medications used to cause an abortion, it would be a shocking overreach and subject to much criticism. The impact of the ruling, however, would be less clear.
For starters, whether the FDA would respond by taking the unprecedented step of rescinding approval of a proven-safe pill regimen is unknown. Whether Americans will care is unlikely — we use drugs without FDA approval all the time. And whether the FDA would take action against those who prescribe or use the medications is unknown, particularly considering the proven safety of abortion medications in the U.S. and worldwide. Ultimately, if one of the drugs (mifepristone) is stripped of its FDA approval, its partner drug (misoprostol) can do the job alone, although less effectively and with more discomfort.
Post-Roe legal uncertainty around abortion is a sign of the times. Yet one thing is clear: There is no putting the medication-abortion genie back in her bottle.
Medication abortion is now the most common, cost-effective method of abortion in the U.S. For patients in banned states, it averts the dangers of pre-Roe back-alley abortion. In the abortion-banning zone from West Virginia through Texas, access to medication abortion while not easy, is more affordable and less arduous than traveling to abortion-friendly states. In states like Georgia where abortion is banned after six weeks, medication abortion can be taken early on — before a woman even knows she is pregnant.
Worldwide, those who suspect they are pregnant have taken abortion medications as “missed or late period pills” without ever taking a pregnancy test. The World Health Organization has even supported pre-prescribing abortion medication so people can have them on hand when needed.
Whether used legally or not, medication abortion is a game-changing way to safely, discretely and often single-handedly access abortion. The anti-abortion movement knows this and has been working hard to derail the medication since its introduction in the late 1990s.
Two decades of hostile tactics have been aimed at the abortion pill — ranging from regulations to dissuade doctors from prescribing, state legislative barriers and campaigns of misinformation that exaggerate its risks and terms it “chemical abortion.” Republican Attorneys General sought to chill pharmacies from selling the medications even in states where abortion is legal or where it is needed for miscarriage management. The result was a campaign to boycott Walgreens for its refusal to sell mifepristone, and Gov. Gavin Newsom’s (D-Calif.) decision not to renew a major California contract.
When states criminalize abortion, their laws target the abortion provider or pill supplier with severe criminal penalties. The anti-abortion movement has proclaimed that it is not aiming to imprison women who use medications to self-manage an abortion. Hmm, we’ll see. Even when Roe was the law of the land, aggressive prosecution of women of color for miscarriages or behavior during pregnancy occurred all too often. Threatening to jail women who self-induce abortions is cruel, and has never been politically popular. Let your (Republican) legislators know that criminalizing women and pregnant people for taking control of their bodily autonomy is never okay.
To protect abortion providers, telemedicine shield laws are key. Telemedicine offers a way for women and pregnant people to obtain medical advice from a licensed provider by video or phone, and pills by mail. It yields greater privacy and avoids the need for disruptive travel. Opportunities for abortion opponents to harass, stalk, threaten or blockade patients and providers at clinic doors are gone.
Several health care providers, organizations and a few for-profit companies already offer medication abortion by mail to those living in, or visiting states where abortion is legal. In abortion ban states, medication abortion pills are increasingly available through “black market” sources or from legal providers outside of the U.S., many of whom are mission-driven and qualified. But we can do better.
If we pass telemedicine shield laws, providers in abortion-supportive states can offer care to those in abortion-banning states. Last year, several abortion-friendly states passed packages of laws to protect clinicians treating patients who travel from out of state. Shield laws give some protection to providers who fear being dragged into criminal or civil proceedings in abortion-hostile states. Telemedicine shield laws extend these protections to providers who serve patients who can now travel “virtually” to their doctors rather than by plane, train or automobile.
So far, Massachusetts is the only state protecting telemedicine abortion providers who serve patients located in another state where the provider is not licensed and where abortion may not be legal or available. New York is close to passing a telemedicine shield bill and California, Vermont, Maryland, Washington, New Jersey and other states now have an opportunity to catch up and pass their own telemedicine shield laws. This could be game-changing.
I work with doctors, nurse practitioners, midwives and others who feel an ethical obligation to treat women and girls denied abortion access. Let’s shield those dedicated providers and join them in asserting the human right to decide whether, when and with whom to have a child — or not.
Julie F. Kay is a human rights lawyer who successfully argued against Ireland’s ban on abortion before the European Court of Human Rights and is the co-author of “Controlling Women: What We Must Do Now to Save Reproductive Freedom.”
Editor’s note: This story was updated on March 31 to correct the number of states seeking shield laws.