As bans and restrictions proliferate across the country, abortion pill providers are pushing the envelope of regulations and laws to meet the surging demand for medication abortion in post-Roe America.
Some are using physician discretion to prescribe pills to patients further along in pregnancy than the 10-week limit set by the Food and Drug Administration. Some are making pills available to women who are not pregnant but feel they could need them someday. Some are employing a don’t-ask-don’t-tell approach, providing telemedicine consultations and prescriptions without verifying that patients are in states that permit abortion.
These changes are easing access to the pills for patients in states that have curtailed abortion, and also in states where it remains legal, but where clinics have longer wait times as patients flood in from restrictive states.
Some of the practices, like not confirming that telemedicine patients are located in states that allow abortion, may run afoul of anti-abortion state laws or fall into uncharted legal territory, but they may also be challenging to police, reproductive health experts said.
“We’re going to see these different approaches by organizations as they assess what the laws say and develop their rationale for how to provide care,” said Elizabeth Nash, state policy analyst for the Guttmacher Institute, a research group supporting abortion rights. “We just don’t have a road map about how to provide medication abortion post-Roe, so it’s all being created right now.”
Abortion opponents criticized the efforts, calling them risky for women. Tessa Longbons, senior research associate at the Charlotte Lozier Institute, an anti-abortion organization, said the method had greater rates of complications and failure after 10 weeks that “could just put women at risk.” Providing pills to women who are not pregnant, she said, creates a risk that a woman “could take it anytime or someone that it wasn’t initially prescribed to could end up taking it.”
Medication abortion, which was legalized in the United States in 2000, typically involves two drugs: mifepristone, which blocks a hormone necessary for pregnancy development, followed 24 to 48 hours later by misoprostol, which causes contractions that expel pregnancy tissue.
Patients with some medical issues, like bleeding disorders, are not prescribed abortion pills. But for the many patients who are medically eligible, data indicates medication abortion is safe and effective, with a small percentage of patients requiring a procedure to fully remove pregnancy tissue and an even smaller proportion experiencing serious complications.
The method is less expensive, less invasive and, especially with telemedicine, more private than surgical abortions. By 2020, it accounted for over half of U.S. abortions and has become even more sought-after since Roe was overturned.
In the fast-changing abortion landscape, new online medication-abortion services are starting, and existing services are expanding, often adopting some of the new practices. Legally, this is a new frontier, both supporters and opponents of abortion rights say. It’s unclear, for example, whether any anti-abortion state laws — which typically target providers, not patients — address providing pills to someone who is not pregnant.
“As these new practices are developing, it is likely that they will be in a legal gray area,” said John Seago, president of Texas Right to Life, who said current Texas laws only involve providing abortion to women known to be pregnant.
Other practices, like those that help patients in states with bans obtain pills, might violate those laws. But questions remain. Most providers using these practices prescribe and distribute pills only within states where abortion is legal. If those legally prescribed pills are then used by residents of anti-abortion states, it’s unclear if those states can prosecute out-of-state providers.
Dr. Seago, who has a doctorate in bioethics, said new legislation would probably be introduced to combat the new practices. “Legislators are committed to figuring out how to enforce these laws,” he said.
Beyond the F.D.A. Threshold
In the fast-changing abortion landscape, new online medication-abortion services are starting and existing services are expanding.Credit…Jeff Roberson/Associated Press
Before Roe was overturned, few American services offered pills beyond the F.D.A.’s 10-week threshold, but many are now.
Abortion Telemedicine, which was started after a draft of the Supreme Court ruling overturning Roe leaked in May, serves patients throughout the first trimester, which is 13 weeks into pregnancy.
That company, and others serving patients at 11 or 12 weeks’ gestation, can legally use medical discretion to do so because studies suggest that abortion pills are safe and effective at that stage. The World Health Organization supports medication abortion through 12 weeks’ gestation.
Dr. Daniel Grossman, a professor of obstetrics, gynecology and reproductive sciences at the University of California, San Francisco, said that late in the first trimester, medication abortion is safe and effective, but that there’s “a somewhat higher risk of some complications, including heavy bleeding,” and an additional dose of misoprostol is often needed to fully expel the tissue.
Some services, including Abortion Telemedicine, automatically send a second round of the four misoprostol tablets for patients undergoing late first-trimester abortions.
Reproductive health experts said patients should be advised that, while earlier in pregnancy, expelled tissue resembles a heavy period, after 10 weeks, it can appear more fetus-like. Dr. Abigail R.A. Aiken, an associate professor at the University of Texas, Austin, who leads a medication-abortion research group, said preparing patients for what the tissue might look likecould also help them guard against legal risk in states banning abortion — for example, in a situation where a patient is surprised by what they see and“then is disclosing that to someone who’s like ‘Well, I’m going to report you.’”
Joann, 23, a single mother, was already 10 weeks pregnant when she decided to abort, so she contacted Abortion Telemedicine. She said she initially planned to carry her pregnancy to term, but then her 3-year-old son was diagnosed with autism and her employer, the U.S. military, decided to transfer her to another state. Joann, who asked to be identified only by her first name to protect her privacy, was in Colorado at the time, where abortion is legal, but her community was conservative.
The service’s nurse practitioner told her that since she’d be taking the pills after 10 weeks’ gestation, she should expect more pain and bleeding, and counseled that the expelled tissue might resemble a fetus “so that I would be prepared for it,” Joann said.
At 11 weeks and two days pregnant, she took the mifepristone, followed by the first four-tablet dose of misoprostol the next day and the second round six hours later. The cramping hurt, but “it was bearable,” she said.
Providing Pills Before Pregnancy
Some services are offering “advance provision” of abortion pills to patients who aren’t pregnant. Christie Pitney, a midwife who works with Aid Access, a medication-abortion service based in Europe that works with U.S. providers, likened it to travelers who “get medication for traveler’s diarrhea or for altitude sickness before you actually need to use it.” She said patients completed medical consultations before receiving prescriptions and were asked to contact the service again for an evaluation before taking the pills. Mifepristone’s shelf life is three to five years and misoprostol’s is 18 to 24 months, experts say.
Several reproductive health experts have recently endorsed advance provision, suggesting that safety risks are low if patients are medically screened before being prescribed pills and before taking them, and if they have access to medical care if needed. Still, providers acknowledge that in an environment where many states restrict abortion, some patients may not follow appropriate guidelines. An article supporting advance provision, co-written by Dr. Grossman at U.C.S.F., noted that patients could take the pills in inappropriate circumstances or give them to others, and recommended further study.
Ms. Pitney said Aid Access, which began offering advance provision in the United States in September 2021, was receiving about 40 requests per day earlier this year, but that the week after the Supreme Court decision, over 10,000 requests poured in.
Hana, 31, said she sought advance provision because she lives in Arizona, a conservative state where a ban or other restrictions could take effect, and which is one of 19 states prohibiting telemedicine abortion. Hana, a claims researcher for a health insurer, who asked to be identified by only her first name to protect her privacy, said she tried to order from Aid Access the day the Supreme Court overturned Roe, but couldn’t get onto the website because traffic was so heavy. Two days later, she succeeded.
After patients complete medical consultation forms, Aid Access ships from within the United States to patients in states with legal telemedicine abortion, while patients in restrictive states, like Hana’s, receive pills from a pharmacy in India. In 2019, the F.D.A. tried unsuccessfully to get Aid Access to halt overseas shipping. The organization’s founder, Dr. Rebecca Gomperts, a Dutch physician, said that U.S. Customs had occasionally stopped packages, but that most arrived without incident.
“I have it hidden in my closet,” said Hana, who lives alone, but doesn’t want guests to stumble upon the medication. “I’m a little nervous,” she said, but added, “It’s really nice to have it just in case.”
An Honor System for Patients’ Location
Some services check IP addresses to ensure that during telemedicine-abortion consultations patients are located in states where the practice is legal, but a growing number have decided not to verify location.
“We don’t have any barriers such as an ID verification or GPS validation,” Dr. Jayaram Brindala, the founder of Abortion Telemedicine, said. His company arranges video consultations in 17 states where telemedicine abortion is legal and its appointment-booking form asks patients where they live, but “it’s on their honor,” he said.
Some patients indicate they reside in states with abortion restrictions and are traveling to states where abortion is legal to receive pills at an address there, where the company can legally ship them, Dr. Brindala said.
Ms. Pitney, the midwife with Aid Access, who also runs a service based in the United States called Forward Midwifery, said a shipping address was the only geographical information those services required. Only if patients mention they are doing the medical consultation from a state that prohibits telemedicine abortion or shipping of pills will she say she cannot legally treat them and refer them to Plan C, an online clearinghouse for information about medication abortion.
Plan C recently added information about “virtual mailboxes” with commercial mail-forwarding companies: addresses in states where pills can legally be shipped and forwarded to patients in restrictive states. Forwarding companies are most likely unaware of the contents of the nondescript packages.
“You’re using a legal mailing service and you’re using a legal telehealth service and you’re getting F.D.A.-approved products from a clinician with a prescription and the providers are fully compliant with the rules,” said Elisa Wells, co-founder and co-director of Plan C, which tested mail-forwarding companies by shipping bottles filled with garbanzo beans to approximate the rattling of pill bottles.
Some medication-abortion providers are trying to broaden access while following F.D.A. guidelines and verifying patients’ locations.
Abortion on Demand, which serves patients only up to nine weeks’ gestation, checks that patients do their video consultations from one of 22 states or Washington, D.C., all locations where telemedicine abortion is legal, and it will not ship to mail-forwarding companies or P.O. Boxes.
“We very explicitly say that we’re sort of banning anything that may not just put us in legal jeopardy, but really put patients and put patients’ friends who are helping them in legal jeopardy,” Leah Coplon, director of clinical operations, said.
Still, she said, her organization recently expanded to Pennsylvania. That state allows telemedicine abortion, but since Abortion on Demand has no office in Pennsylvania, state law prevents it from shipping pills there. Instead, Pennsylvania patients pick up pills at FedEx sites in New Jersey or Maryland.
“We’ve had a lot of interest,” she said. “If the Pennsylvania model works well, there may be the potential to expand it in other areas.”