The Food and Drug Administration lifted a major restriction on access to abortion pills by allowing the drugs to be sent through the mail on a permanent basis.
The FDA had previously allowed abortion pills by mail as a pandemic measure. But while the rule against mailing abortion pills will be lifted, two other restrictions will remain in place, including the requirement that the health care provider obtain special certification to dispense the medication. The patient will also be expected to sign an acknowledgment that she has been informed by her health care provider about what the drug will do and the possible risks.
The ruling can’t be a coincidence. The Supreme Court is expected to hand down a groundbreaking decision on abortion rights that may end up allowing individual states to criminalize or ban abortions again. The Biden administration is getting a head start on shaping the playing field for the coming battle to keep abortion legal.
Many states that have very restrictive abortion laws are already taking steps to prevent abortion activists from making an end run around the law by making it easier for residents to obtain abortion pills. Some measures currently in place to prevent that include banning telehealth visits exclusively to obtain abortion pills.
“It’s really significant,” said Mary Ziegler, a law professor at Florida State University. “Telehealth abortions are much easier for both providers and patients, and even in states that want to do it, there have been limits on how available it is.”
Groups that want to outlaw abortion issued strong statements against the decision.
“The Biden administration today moved to weaken longstanding federal safety regulations against mail-order abortion drugs designed to protect women from serious health risks and potential abuse,” said a statement from the group Susan B. Anthony List. “The Biden administration policy allows for dangerous at-home, do-it-yourself abortions without necessary medical oversight.”
Patients taking the abortion drug mifepristone have reported some moderate to severe side effects. But data is incomplete because some providers do not report side effects to the FDA.
For example, a research program that the F.D.A. allowed to provide telemedicine consultations and send pills by mail reported that 95 percent of the 1,157 abortions that occurred through the program between May 2016 and September 2020 were completed without requiring any follow-up procedure. Patients made 70 visits to emergency rooms or urgent care centers, with 10 instances of serious complications, the study reported.
Abortion advocates cheered the decision, citing statistics that medical abortions were on the rise even before the pandemic began.
In data released last month by the Centers for Disease Control and Prevention, 42 percent of all abortions — and 54 percent of abortions before 10 weeks — occurred with medication in 2019, the most recent year for which C.D.C. data is available. (The report represents most of the country, but does not include data from California, Maryland and New Hampshire.)
In 2020, in some states, including Indiana, Kansas and Minnesota, the method accounted for a majority of abortions, according to state health department reports.
For both sides, the easier availability of medical abortion will profoundly affect how their proposed laws are shaped. How restrictive should telehealth visits be, given their growing popularity?
If a woman from Alabama driving down the interstate enters California, can she then link to a telehealth provider and be prescribed abortion pills? If so, can she receive the pills by mail in Alabama, even though telehealth visits for abortion in the state and the pills are illegal?
There’s a lot of law that’s going to be written over the next few decades if the Supreme Court overturns Roe.
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