Now that Arizona has restored abortion rights, there is a dangerous sense of optimism from pro-choice folks. While it's a step forward, this is no time to let down our guard as we stand on the verge of losing fundamental rights nationwide.
Arizona's quick pivot came after it became clear to several Republicans that voters would not stay quiet if an antiquated law banning abortion was resurrected. Voter outrage hit the fan similarly when Alabama's anti-abortion state Supreme Court put IVF at risk. The state quickly retreated in the face of large protests.
Meanwhile the Supreme Court is poised to rule next month in Alliance for Hippocratic Medicine (AHM) v. the U.S. Food and Drug Administration (FDA), a case brought by a few aggressively anti-abortion Texas doctors who are seeking to remove a proven, safe, and essential abortion medication called mifepristone from the market. Fortunately, some justices expressed concern at oral argument as to whether these hostile doctors had standing to bring the case. However, the writing is on the wall that the Supreme Court majority is willing to second-guess the FDA, and some are even eager to ban access to abortion medications.
Justices Clarence Thomas and Samuel Alito laid out the welcome mat for future claims based on the Comstock Law, a dormant 1873 statute which controversially banned sending "lewd materials" such as pornography by mail. The effect of Comstock could be to ban access to all abortion medical supplies nationwide. Democrats lack the votes in the House to put a final wooden stake in the Comstock vampire but many hope to run a vote to underscore this.
When the Supreme Court overturned Roe almost two years ago, it opened the door for abortion opponents in more than half the states to shut clinics and put women's rights out of state and out of reach. However, telemedicine is an option that has bloomed through the dark days post-Dobbs v. Jackson Women's Health Organization.
Telemedicine abortion allows legal access to the abortion pill by mail after a virtual visit with your doctor, no matter where you live and for as little as $150. Women without resources, and those facing systemic racism are hit hardest by limits on access to abortion. Telemedicine provides an answer, enabling safe, legal, and effective abortion pills to be sent by mail from licensed clinicians to patients in all 50 states. It is a right we cannot lose.
An estimated one fifth of abortions are done by telemedicine, a number that continues to grow. Licensed medical providers can offer telemedicine within their own states and, importantly, they can reach out from shield states to offer the only care available in states with abortion bans or restrictions. This changes the whole ballgame in the post-Roe world, which is why in AHM a group of doctors and medical groups opposed to abortion are now coming after telemedicine.
I submitted an amicus brief in AHM on behalf of 10 women living in the U.S. who had received health care from licensed telemedicine providers for their own medication abortions. Each woman self-administered the two-step process of mifepristone and misoprostol, the FDA-approved method for terminating early pregnancies up to 12 weeks, and none suffered physical or emotional consequences. Rather, their experiences support what scientific and medical experts have long proven—that the medication is safe and dispensing it without an in-person visit to patients who can then take the pills in the comfort of their home is well within current standards of care. Yet women's experiences were barely mentioned during the oral argument in March other than exaggerated and unproven claims of harm.
Access to medication abortion via telehealth is also critical for treating the communities most impacted by abortion bans and restrictions, particularly low-income, rural patients, or others with limitations on travel—many of whom already experience higher maternal mortality rates and significant barriers to care. Telemedicine offers options for access to safe, licensed care by providers who recognize that abortion is a key part of the human right to health care, dignity, and autonomy. Moreover, telemedicine is a practical solution. It offers timely care, greater freedom for those who cannot travel because of work, childcare or educational commitments.
Thankfully there are several strategies being put in place should the Supreme Court anti-abortion majority win.
We must advocate for and support state-level protections, including telemedicine abortion shield legislation. This new type of law protects clinicians licensed in shield states from criminal or civil liability when they prescribe needed medication to women in states where their rights have been stripped. Already six states (New York, Washington, Colorado, Vermont, Massachusetts, and California) have established a playbook for safe, timely, and affordable medication abortion via telemedicine to patients nationwide. Maine will join in providing safe, legal telemedicine abortion nationwide soon.
At the federal level, whomever controls the FDA will have the ability to recognize that medication abortion is needed to address the public health crisis created by the Supreme Court overturning Roe v. Wade. We need to elect a Congress that will recodify these rights, and ultimately enshrine a gender equity amendment to our stale constitution.
We can't just wait for the next strike against our rights. We need to act now to make sure the FDA, our elected officials and our courts protect our human right to control our own health and to decide whether, when and with whom to start a family.
Julie F. Kay is the executive director of the Abortion Coalition for Telemedicine (ACT) and the co-author of Controlling Women: What We Must Do Now to Save Reproductive Freedom. She argued the case of ABC v. Ireland before the European Court of Human Rights.
The views expressed in this article are the writer's own.
Uncommon Knowledge
Newsweek is committed to challenging conventional wisdom and finding connections in the search for common ground.
Newsweek is committed to challenging conventional wisdom and finding connections in the search for common ground.
