Virtual Abortions Surged After Roe Was Overturned — But The Texas Ruling Could Change That
UPDATE (April 14, 4:40 p.m.): As of April 14, the Supreme Court has issued a temporary stay on restrictions of mifepristone while the justices evaluate whether they will issue a formal stay. Two days prior, the Fifth Circuit Court of Appeals issued a partial stay of Judge Matthew Kacsmaryk’s ruling, affecting only his decision to invalidate the original 2000 approval of mifepristone — not subsequent updates to the FDA’s regulations surrounding the drug’s use. Under the Fifth Circuit’s ruling, mifepristone can still be sold and used, but cannot be distributed through the mail and must be dispensed in-person at a clinic, hospital or by a certified medical provider, a process that involves multiple visits. It is unclear how this pause interacts with a ruling from a federal court in Washington state that orders the FDA to continue dispensing mifepristone under the newer, telehealth-friendly regulations.
In the months since the Supreme Court’s ruling in Dobbs v. Jackson Women’s Health Clinic, more and more women have safely ended their pregnancies at home, without ever setting foot in an abortion clinic.
Between the pre-Dobbs period and the post-Dobbs period, the number of abortions performed by virtual-only providers rose by 76 percent, according to a FiveThirtyEight analysis of new data from #WeCount, a national research project led by the Society of Family Planning, a nonprofit that supports research on abortion and contraception.1 By the end of 2022, 11 percent of all the abortions counted by the project were performed entirely virtually using abortion pills — a remarkable rise of almost 7 percentage points in less than a year and a sign of how quickly women in states where abortion remains legal are coming to rely on pills obtained through telehealth to end their pregnancies.
But depending on how a legal battle over a drug typically used in a medication abortion unfolds, that could change. Last week, a federal judge in Texas, Matthew Kacsmaryk, issued a ruling that invalidated the Food and Drug Administration’s approval of mifepristone, the first of two drugs used in nearly all medication abortions performed in the U.S. Kacsmaryk also ruled that the FDA broke an 1873 law, which hasn’t been enforced in almost a century, when it allowed abortion providers to send pills through the mail. The fate of the decision, which the judge stayed for seven days to allow the government to appeal, is still unknown — but it underscores that even though telehealth is transforming the way abortion happens in the U.S., this new form of access remains precarious.
Texas judge suspends approval of abortion drug | FiveThirtyEight
When Cindy Adam opened Choix, an online-only abortion provider, in late 2020, her organization was one of only a handful providing this service, and the whole idea of a telehealth abortion was foreign to many Americans. “When we first launched we’d get calls every day making sure we weren’t a scam,” said Adam, Choix’s CEO. Other abortion clinics with multiple locations, like Planned Parenthood, had previously experimented with remotely prescribing abortion pills by having patients come into a clinic to video-chat with a physician somewhere else in the state, but that still required women to go to a brick-and-mortar location. Providers didn’t have the leeway to experiment with other options because even after the FDA loosened regulations on medication abortion in 2016, they were still required to provide the first pill in the sequence — mifepristone — in person.
All of that changed during the COVID-19 pandemic when a federal judge ordered the FDA to temporarily suspend its in-person rule. Many existing clinics began to offer telehealth services to eligible women in the first 10 weeks of pregnancy, but Adam and other providers took the rule change a step further, establishing online clinics with no physical locations. These online-only providers didn’t offer their services everywhere — some state regulations still ban or restrict telehealth abortion — but for many women, getting abortion pills became as easy as going to a provider’s website, filling out a form, and, in some cases, messaging or video-chatting with a provider before getting the two pills in the mail. Online clinicians were on hand to provide support during and after the abortion, but there was no ultrasound or follow-up visit required. The abortion itself happened entirely in the privacy of the patient’s home.
The FDA permanently rescinded the in-person prescribing requirement in late 2021, and even more online providers emerged. And as the #WeCount data shows, virtual-only abortions only got more popular in the aftermath of Dobbs. California, New York and Colorado saw some of the largest increases — in California, the number of virtual-only abortions more than doubled over the course of 2022, from 690 in April to 1,670 in December, according to #WeCount.
Leah Coplon, director of clinical services at Abortion On Demand, a telehealth abortion provider that operates in over 22 states, said that for many patients, getting an abortion quickly is a top priority. “They’re seeing long waits for appointments at the clinics near them, and looking for an alternative,” she said.
Abortions also tend to be cheaper through telehealth-only providers, despite many not accepting insurance, including Medicaid, because of problems with bureaucracy and reimbursement rates. The generally lower cost, combined with the convenience of not having to go to a clinic, make them all the more appealing to many patients. “Because they don’t have to maintain brick-and-mortar facilities and because they’re only seeing people who [need] telehealth abortions, they can have very small staffing, they can serve a lot of geography and they don’t have a lot of record-keeping,” said Tracy Weitz, a sociology professor at American University who studies medication abortion. “So their prices tend to be a little lower than brick-and-mortar providers, who have more operating costs.”
It’s not clear at this point what Kacsmaryk’s ruling will mean for virtual-only providers, even if his decision is ultimately upheld by other courts. Adam and Coplon both told me that if mifepristone is taken off the market, their companies will pivot to providing abortions using only the second drug in the sequence, misoprostol. That can also safely end a pregnancy — although it is slightly less effective and has more side effects. But Coplon predicted that whatever happens, it will remain hard to explain to patients what’s legal and what’s not. “It is genuinely very confusing to have all these changes coming one after another,” she said.
Meanwhile, patients could have fewer choices, and if more people opt for procedural abortions, the pressure on brick-and-mortar clinics — which are already seeing increased demand in many places — will only grow. Some women may opt instead to order abortion pills from other online sources like Aid Access, a group that mails pills like mifepristone from India to places where abortion is illegal or certain methods are unavailable. If mifepristone is taken off the market, that could soon include every state in the U.S.