The court can’t stop abortion pills

click to enlarge A wheatpaste message from Shout Your Abortion reads, “Fuck The Courts Abortion Forever.” - Ezra Dickinson , Shout Your Abortion

Ezra Dickinson , Shout Your Abortion

A wheatpaste message from Shout Your Abortion reads, “Fuck The Courts Abortion Forever.”

On Tuesday, the United States Supreme Court took a decisive step in the long-standing controversy over abortion post-Roe v. Wade by examining the regulatory framework surrounding mifepristone, a key drug in medical abortion protocols. This case, spotlighted for its profound implications on reproductive healthcare and the regulatory authority of the FDA, underscores the ongoing and contentious battle over abortion access in America.

The case concerns the regulation and access to mifepristone, a drug used in the majority of medical abortions across the nation. Initiated by the Texas-based Alliance for Hippocratic Medicine against the FDA’s policies, the dispute highlights significant disagreements on the safety, oversight, and accessibility of the abortion pill. These policies, which have been liberalized over the years, now allow the drug to be prescribed via telemedicine and mailed directly to patients. The challenge questions both the FDA’s original approval of mifepristone for abortion and its subsequent decisions to ease access restrictions, implicating broader debates over reproductive health care, regulatory authority, and the impact of judicial decisions on medical practice.

The defendants in the case, represented by the Biden administration and Danco Laboratories (the distributor of mifepristone), argued strongly in favor of maintaining access under the FDA’s current regulations. They contended that the lower court rulings, which sought to restrict access to the drug, were unprecedented and contradicted the FDA’s scientific judgment. The administration emphasized the potential regulatory chaos and significant impacts on healthcare access that could arise from upholding these rulings. They highlighted that the drug’s safety profile is well-documented, with a complication rate lower than many over-the-counter medications, and warned that curtailing access to mifepristone could undermine trust in the regulatory framework and affect other medications, including contraceptives and vaccines. Danco Laboratories, meanwhile, described the situation as an “untenable limbo,” arguing that without the FDA approvals, they would not be able to legally market and distribute the drug, further complicating access for those in need.

The prevalence of medication abortions in the U.S. underscores their significance in reproductive healthcare. The Centers for Disease Control and Prevention (CDC) reported that, as of 2021, medication abortions accounted for 56% of all abortions in the U.S., marking a rise from previous years. Mifepristone, used in combination with misoprostol for medical abortion, has a well-documented safety record supported by decades of data and is approved for use in nearly 100 countries. Since its FDA approval in 2000, extensive evidence has demonstrated mifepristone’s safety and effectiveness, showing it to be a crucial component of reproductive healthcare. It’s a part of the World Health Organization’s list of essential medicines due to its role in decreasing the incidence of unsafe abortions and is considered safe for use through ten weeks of gestation.

The FDA announced in April 2021 that it would temporarily allow abortion pills, including mifepristone, to be mailed to patients during the COVID-19 pandemic. This decision facilitated the prescription of mifepristone via telehealth by enabling patients to receive the medication without requiring an in-person visit to a healthcare facility. Following this temporary allowance, in December 2021, the FDA issued a permanent decision to allow the mailing of abortion pills, expanding access through telehealth and pharmacies.

This move by the FDA was supported by extensive research demonstrating that telemedicine abortions are as safe and effective as in-person care. A large multi-state study, for instance, analyzed records from nearly 6,000 patients receiving medication abortion either through telemedicine or in person and found that outcomes for medication abortion via telemedicine are comparable with those provided in person, with very rare complications​.

Furthermore, even in states where abortion access is heavily restricted, telehealth has continued to rise as a critical means for patients to obtain necessary care. Studies and organizations advocating for reproductive rights have emphasized the importance of telehealth in maintaining access to abortion pills, highlighting its safety and effectiveness, and noting that more Americans are using telehealth to access or even stockpile abortion pills in anticipation of future needs​.

For the majority of Americans, telehealth has emerged as the primary, if not sole, avenue for accessing abortion care. This trend is not limited to states where abortion services have been heavily restricted or outright criminalized. In rural areas, such as those found in Northern Michigan, the challenges of geographical isolation and scarcity of healthcare providers compound the issue, making telehealth a crucial option for those seeking abortion care.

The financial impact of in-clinic abortions, often exceeding $600 per procedure, significantly burdens those seeking abortion care. This cost does not include additional financial pressures such as lost wages from taking time off work, travel expenses to the clinic, and, when necessary, accommodations for overnight stays due to distant providers. These accumulated costs render in-clinic abortions a challenging option for many, particularly in areas even with several clinics, such as metro Detroit. Here, despite the availability of clinics, the high costs of procedures often present an insurmountable barrier, making medication abortion a more viable option. Offering a cost-effective solution for those navigating financial obstacles, medication abortions are available online, with prices ranging from no cost up to $150. The medications are delivered directly to homes, representing a practical alternative for individuals unable to afford clinical care.

Although medication abortion is demonstrated to be safer than widely prescribed medications such as penicillin and Viagra, the contention surrounding it is driven not by its medical application but rather by its political implications. The truth is that the anti-choice movement perceives abortion medication delivered via telehealth as a significant loophole, representing a modern method for ensuring abortion access despite legislative restrictions. Despite the availability of evidence showcasing its effectiveness and safety, as well as data highlighting the adverse outcomes of denying access to abortion, opponents of abortion rights persist in advancing their agenda, regardless of the consequences for the health and well-being of those seeking care and their families.

During Tuesday’s oral arguments, the Supreme Court appeared inclined to reject challenges to the availability of abortion pills.

The litigants maintain that attending to patients who have used abortion medications violates their personal moral and religious convictions, and while Supreme Court Justice Ketanji Brown Jackson and Solicitor General Elizabeth Prelogar emphasized that the plaintiffs’ ethical dilemmas are already mitigated by established federal conscience protections, the lawsuit seeks to impose stringent restrictions on these medications, which would restrict availability to all people in the U.S. The court appeared skeptical about the necessity to amend FDA regulations universally just to accommodate the concerns of a specific group.

The final decision is likely to remain uncertain until June, when the Court typically announces its rulings on highly debated cases. In the meantime, we can take away that the anti-choice movement is strategically targeting the scientific and regulatory underpinnings of abortion rights, focusing on legal challenges and efforts to sway public opinion to restrict access to abortion services.

The anti-choice movement’s tactics align with its long-standing approach of disseminating misleading information about abortion medication and organizations like Planned Parenthood, as well as their widespread success in restricting access to comprehensive sexual education and establishment of so called “Crisis Pregnancy Centers,” which masquerade as legitimate abortion clinics but instead aim to dissuade individuals from seeking abortion care through misleading counseling and information.

Republican voters, particularly those with strong evangelical beliefs, have significantly influenced the GOP’s stance on abortion, despite representing the minority of Americans who oppose abortion access. This focus has led to a strategic alignment with anti-abortion policies, aiming to secure and mobilize the evangelical base in support of Republican candidates, as seen in recent election cycles. This strategic alignment underscores a prioritization of appeasing a specific voter base rather than legislating in the best interest of the country’s citizens based on empirical data and objective analysis.

While Republicans have undeniably capitalized on the abortion debate for electoral gains, Democrats have also leveraged it to their advantage. For decades, Democrats have campaigned on safeguarding reproductive access, with Vice President Kamala Harris recently launching a “Reproductive Freedoms Tour” as part of the Biden-Harris 2024 campaign. Despite substantial financial investments in supporting pro-choice candidates, the erosion of protections under Roe v. Wade persists. The absence of an effective mechanism to hold elected officials accountable for their campaign pledges suggests that abortion has become a potent rallying point for committed single-issue voters, offering little impetus for either party to seek resolution on the matter.

However, hope does lie at the end of the tunnel. According to new research published in the medical journal JAMA on Monday, there were about 26,000 more self-managed medication abortions than expected based on pre-Dobbs trends and about half of the pills for self-managed medication abortions were provided by community organizations outside of the formal healthcare system. Community networks supplying abortion pills typically consist of grassroots organizations or advocacy groups operating at local, national, or international levels and provide access to reproductive healthcare, including abortion services, to individuals who may face barriers such as financial constraints, geographical distance from clinics, or legal restrictions.

These provisions are frequently established outside legal frameworks, ensuring that safe, effective, and affordable abortion medication is accessible to anyone in need, regardless of judicial rulings or current elected officials. Currently, abortion medication is available by mail in all 50 states. Although this form of medication is highly safe, its legal standing in the United States remains precarious. A 2023 study by If/When/How reported that 61 people were criminally investigated or arrested for allegedly ending their own pregnancy 2000 and 2020.

Given that the criminal justice system disproportionately impacts marginalized communities, it follows that abortion regulations will similarly affect these groups, especially Black individuals and low-income people of color. This pattern suggests that any restrictions or criminalization of self-managed abortions will most heavily impact those already facing systemic inequalities. That’s exactly what the data reported by If/When/How shows. Out of 54 cases that involved adults investigated for pregnancy termination, more than 40% of the cases involved people of color.

In a significant number of instances, healthcare providers, uncertain about legal obligations and concerned over potential prosecution for complicity, have reported patients to authorities. It’s important to note, however, that no current state or federal legislation mandates medical professionals to report instances of self-managed abortions to law enforcement. Proper patient education on the expected outcomes of medication abortions would likely decrease unnecessary emergency room visits. Moreover, informed patients might refrain from disclosing their use of abortion medication to healthcare staff, as medically, a self-managed abortion is indistinguishable from a miscarriage.

This implies that irrespective of the Supreme Court case’s resolution, if the anti-choice advocates have managed to sow sufficient doubt regarding the safety and legal status of abortion pills, thereby leaving individuals in need of this essential medication uncertain about its administration or where to seek assistance and healthcare providers unsure of their duties, we are likely to witness a surge in avoidable regulatory crackdowns. This underscores the danger of both restricting access to information on self-managed abortions and spreading misinformation about them. These actions can significantly jeopardize public health and safety, as they contribute to confusion and potential harm among those seeking safe abortion methods.

Fortunately, comprehensive support networks are being built across the country and expanding to assist individuals, irrespective of legal constraints. Organizations such as Plan C Pills and Aid Access are connecting folks with safe and affordable medication and have committed to providing information about how to obtain abortion pills regardless of what the courts decide. The Miscarriage + Abortion hotline is staffed by doctors with years of experience caring for miscarriage and abortion are available by phone for all questions and concerns throughout an abortion or miscarriage, and the Repro Legal Helpline can answer legal questions about abortion.

These organizations, along with many others, form a unified front of support, ensuring that everyone, no matter their location, can access abortion pills safely. The truth is, it’s not feasible to limit the distribution of abortion pills via mail. The primary obstacle is simply the unawareness of the existence of these vital resources, and it’s something everyone can participate in.

Our collective effort is critically needed: Gaining an understanding of how these support networks function and the necessary safety measures is essential. By securing abortion medication in advance, to have it on hand for either personal use or to assist others later, we enhance our shared resource network. By openly sharing this vital information, we can collaboratively work to expand abortion access throughout America for everyone.

The courts can’t stop us, but we need your help.

Jex Blackmore is a founding member of Hydra Mutual Aid Fund.

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