The case could roll back rules about drugs used in medication abortions, eliminating virtual clinics and mailed prescriptions, at a time when most U.S. abortions rely on pharmaceuticals.
by Suzanne King
A case before the U.S. Supreme Court could drastically limit access to medication abortions, now the most common form of abortion in the United States.
That could increase the already fast-growing flow of patients to Wichita trying to escape abortion bans that have swept through the region since the high court overturned Roe v. Wade in June 2022.
Dr. Kelly Pfeifer said she is preparing for a surge of even more patients if the justices change rules around the abortion pill mifepristone. The court heard oral arguments on the case Tuesday.
“We are ready and willing to stand with the other Kansas clinics and expand capacity to see the people who need to be seen,” said Pfeifer.
She’s a family medicine doctor from California whose 15-month-old Wichita clinic, Aria Medical Clinic, saw 3,100 patients in 2023 — nearly all from states where abortion is no longer legally available.
Aria, which only offers medication abortions, set up shop in Kansas soon after the high court gave states the authority to impose bans in 2022 and Kansas voters rejected a ballot initiative that would have let state lawmakers do away with the state’s abortion protections.
Like a growing number of abortion clinics founded since the court struck down Roe, Aria expands abortion access by focusing on medication abortions. They rely on a regimen of two drugs, rather than surgery, to end early-stage pregnancies.
Medication abortions are less expensive and are often available through telehealth appointments, although Aria only sees patients in person.
A recent Guttmacher Institute report found that medication abortions made up 63% of all abortions last year, when the total number of U.S. abortions surpassed 1 million for the first time since 2012. They made up 53% of abortions in 2020, 39% in 2017 and only 6% in 2001.
That trend has drawn more attention to medication abortions from anti-abortion activists. Access to abortion pills has opened up abortion access to many patients, even where abortion has been outlawed.
But some legal experts believe the Supreme Court looks poised to hand down a decision later this year that would severely hinder that access.
The anti-abortion groups who brought the case — Alliance for Hippocratic Medicine v. U.S. Food and Drug Administration — contend that the U.S. Food and Drug Administration overstepped when it revised requirements for how mifepristone, one of the drugs commonly used in medication abortions, should be dosed and prescribed.
The FDA said evidence shows that mifepristone is safer than ibuprofen or penicillin and rarely leads to health complications. But plaintiffs argue that doctors with moral objections to abortion are forced to treat patients who show up in the emergency room after taking mifepristone. They want the court to throw out the FDA’s original 2000 approval of the abortion pill, along with revisions the agency made to recommended doses and how it is prescribed.
The 5th Circuit Court of Appeals rejected a lower court’s decision to order the FDA to revoke mifepristone’s approval, but said the agency was wrong to change dispensing and prescribing rules in 2016 and 2021. It is those changes, along with whether the plaintiffs had legal standing to bring the case, that the Supreme Court is considering.
If the court upholds the appeals court’s decision, requirements could be rolled back to what they were in 2011. If that happens, medication abortions would only be available up to seven weeks in a pregnancy — down from 10 weeks — and the drug could only be dispensed at a clinic, medical office or hospital by or under the supervision of a certified physician. That could spell the end for virtual appointments and drugs sent.
It could also drive more women to Wichita from Texas and Oklahoma, where abortion is outlawed. All three abortion clinics in the city have seen a surge in out-of-state patients. Trust Women, Wichita’s largest abortion provider, saw just over 5,000 patients last year, the highest number in the clinic’s history and more than triple what it saw in 2021.
“The biggest consequences of this decision could be that telehealth (abortions) would no longer be available in any of the 50 states,” said Ushma Upadhyay, professor and public health scientist at the University of California, San Francisco.
Upadhyay said that’s exactly what abortion opponents are hoping.
“They want telehealth to stop because they know that it is effectively working to weaken the abortion bans and to weaken the impact of banning abortions,” she said.
Medication abortions offered through telehealth appointments also have driven a rise in virtual clinics, which allow doctors to see patients online and send prescriptions through the mail.
ANSIRH (Advancing New Standards in Reproductive Health) at the University of California, San Francisco, says the U.S. had 69 virtual clinics in 2022, compared to just 32 in 2021, the first year the drugs could be sent through the mail.
In states like Missouri, where abortion is almost entirely banned, abortion providers say more patients are getting access to abortion pills through virtual clinics.
Through groups like AidAccess, patients can get telehealth appointments and medication mailed to them for $150, Upadhyay said. It would cost hundreds more if the patient had to travel to a state where abortion is legal for an in-person appointment.
Six states — California, Colorado, Massachusetts, New York, Vermont and Washington — have shield laws that protect doctors who offer abortion care to patients living in states where abortion is banned.
Abortion opponents are also opposed to abortion medication being sent through the mail. The plaintiffs in the case before the Supreme Court have argued that the FDA’s change to allow providers to mail mifepristone violated an 1873 anti-obscenity law known as the Comstock Act.
If the court buys that argument, much more could be at risk, said Yvonne Lindgren, associate professor of law at the University of Missouri-Kansas City. Abortion opponents could argue that the 19th century law also restricts shipment of other equipment needed to provide abortions.
“The Comstock Act is a threat to abortion anyplace in the United States,” Lindgren said.
Legal experts also warn that the case could open the door for lawsuits anytime the agency makes a recommendation about a drug.
“If it’s not the rigorous FDA protocol that determines the safety and efficacy of a drug,” said Emily Wales, president and CEO of Planned Parenthood Great Plains, “and instead it’s a judge sitting in any state that could control care around the country, that’s really concerning to every patient of every possible type of medical care.”
Legal restrictions haven’t stopped abortions in the country so far, studies show. In fact, the number of abortions increased last year nationwide, showing the biggest jump in states like Kansas that still have protections. New legal hurdles, said Pfeifer of Aria Medical Clinic in Wichita, are unlikely to change that trajectory.
She said her clinic will be ready.
“The reasons people get abortions have not changed,” Pfeifer said. “People will do what they need to do to be able to decide when and if to parent.”
This article was republished here with the permission of: The Wichita Beacon