Digital abortion providers, doctors brace for complex legal landscape after SCOTUS ruling

Even just a few hours after the Supreme Court released its decision to overturn the legal right to an abortion in the U.S., digital abortion providers were gearing up to expand their services in anticipation of surging demand.

Just the Pill, a nonprofit organization dedicated to improving abortion access, plans to deploy a fleet of mobile clinics to park along state borders, starting in Colorado, Julie Amaon, M.D., medical director of Just The Pill and Abortion Delivered, told Fierce Healthcare via email.

The medication abortion mobile clinic is outfitted with technology for telehealth consultation and secure delivery of medication, Amaon said.

The organization's second, larger clinic will provide patients with a mobile clinic-based procedural abortion, a first in the U.S., according to Amaon.

That clinic will serve patients who are not eligible for medication abortion (over 11 weeks) or who choose procedural abortion for other reasons.

"By operating on state borders, we will reduce travel burdens for patients in states with bans or severe limits. And by moving beyond a traditional brick-and-mortar clinic, our mobile clinics can quickly adapt to the courts, state legislatures, and the markets, going wherever the need is greatest," she said.

The nonprofit is currently seeing patients in Minnesota, Montana and Wyoming. Since opening for business in October 2020, Just the Pill has provided care to more than 2,000 people, including patients who traveled for care from Texas, Washington, Idaho, Utah, Nebraska, North Dakota, South Dakota, Wisconsin and Iowa. 

“We remain committed to improving abortion access in the face of increasing restrictions. Just The Pill is primed to meet these challenges with game-changing innovation that makes reproductive health care accessible to all people, particularly those historically deprived of access," Amaon said.

The Supreme Court's ruling and state bans on abortion will increase inequities in healthcare, according to Iffath Hoskins, M.D., president of the American College of Obstetricians and Gynecologists.

"The impact of this irresponsible decision will fall disproportionately on people who already face barriers accessing health care, including people of color, those living in rural areas, and those without ample financial resources. This decision, which has been foreshadowed for many months, confirms that this is a dark and dangerous time for the women and doctors of America," Hoskins said.

Many providers see digital abortion services as key to expanding access to reproductive health care.

"We see telehealth abortion as generally impactful and even more impactful at this particular moment in time," Cindy Adam, CEO and co-founder of virtual abortion provider Choix, told Fierce Healthcare before the Supreme Court's ruling. 

Choix, launched in 2020, is a virtual clinic offering asynchronous telemedicine abortion services to people in California, Colorado and Illinois.

Adam, a nurse practitioner, said colleagues operating brick-and-mortar clinics are seeing an increase in appointment requests in states like Illinois, causing longer wait times for in-person care.

"The telehealth model allows us to support patients who are eligible to receive abortion care from home, to do so quickly and safely. We hope that this will help alleviate capacity issues, helping to reserve in-person visits for patients who require or prefer in-person care," she said. "Overall, we see telehealth as part of a greater effort to expand and improve access to abortion care."

Since the leak of the draft opinion, Choix has seen a spike in the number of visitors to the website along with increased inquiries about what states the company serves and the types of care it provides, Adam said.

"Choix will continue to expand to every state where we can safely and legally provide abortion care and our goal is to be in every single one of those states by the end of 2023. We are also actively building partnerships with local and national practical support organizations, abortion funds and other clinics in order to support patients seeking care across the country," she said.

Hey Jane, an organization that has served patients in California, Colorado, Illinois, New Mexico, New York and Washington, also plans to expand to more states, The New York Times reported.

Telehealth abortions become the new legal battleground

Medication abortions now make up more than half of abortions in the U.S., according to the Guttmacher Institute, an abortion rights advocacy and research group.

Medication abortion has been available in the U.S. since 2000, when the U.S. Food and Drug Administration approved the use of mifepristone for use in the first 10 weeks of pregnancy.

Abortion medication had to be picked up in person until 2021 when the FDA suspended enforcement of the requirement because of the COVID-19 pandemic. The FDA decided in December to permanently allow the abortion pills to be delivered by mail rather than requiring it to be administered in person.

Just the Pill, Hey Jane and Choix are among a crop of new digital abortion companies and organizations, including Abortion on Demand, that typically mail abortion pills to patients in many states after a telehealth visit. Nonprofit carafem offers telemedicine abortion care to people living in Georgia, Illinois, Maryland, Washington, D.C., and Virginia. 

Plan C is an advocacy organization that provides people with information via its website on how to obtain abortion pills.

Many brick-and-mortar clinics have expanded into virtual care services as well.

Just the Pill told the NYT that the organization received four times the usual daily number of appointment requests just hours after the Supreme Court ruling was made public on Friday. 

As demand for virtual abortion rises, these providers will likely be at the center of new legal battles over abortion access.

Thirteen states including Mississippi have “trigger laws” in place that banned abortion upon the overturning of Roe v. Wade. Still more began moving abortion restrictions through their legislative processes following the May leak of the draft opinion. More than half of all states are expected to pursue such laws now that the draft decision is official.

Currently, 19 states ban or restrict the use of telehealth for medication abortion. Texas recently enacted a law prohibiting sending abortion pills through the mail. 

U.S. Attorney General Merrick Garland indicated Friday that the Justice Department would combat any state efforts to restrict access to abortion pills, setting the stage for potential legal battles with some GOP-led states.

"States may not ban mifepristone based on disagreement with the FDA’s expert judgment about its safety and efficacy," Garland said in a statement .

The White House also said Friday its working to make the drug widely available. "In the face of threats from state officials saying they will try to ban or severely restrict access to medication for reproductive health care, the president directed the Secretary of Health and Human Services to identify all ways to ensure that mifepristone is as widely accessible as possible in light of the FDA’s determination that the drug is safe and effective—including when prescribed through telehealth and sent by mail,” the White House said.

"There is a potential conflict between FDA policy and state law. It's a question of whether or not FDA policy could preempt state law," said Rachel Rebouché, interim dean of Temple University School of Law, speaking during a virtual event hosted by The Intercept on Friday.

The landmark Supreme Court decision returns the issue of abortion rights to the states and creates a complex and shifting patchwork legal system.

With the constitutional right to abortion now gone, the coming battles over abortion access will move into a new inter-jurisdictional arena, Rebouché said.

"With Roe returning back to the states, there will be an increasingly complicated legal landscape not to mention the states that aren't going to rush to ban abortion but aren't going to repeal the restrictions that are already on their books," she said.

The use of telehealth for medication abortion means that abortion access is increasingly untethered to state borders, she pointed out.

"We expect there to be conflicts between states that want to punish providers and potentially patients, people who help patients even inside and outside their state lines and then the states like Connecticut and New York, those that are pending in Massachusetts and California, that want to protect the providers who are providing abortions and providers who are providing telehealth care for abortion services," she said.

Patients who live in states that ban abortions could just drive across the state border to have telehealth appointments or have pills mailed to a P.O. box near the state border.

There are also organizations like Aid Access, an international nonprofit organization, that can circumvent U.S. state laws and serves people who live in states that ban telehealth abortion. Through the service, European-based doctors provide prescriptions for abortion medication, which are delivered by an India-based pharmacy.

Moving forward, states trying to crack down on access to abortion services will focus on pharmaceutical companies and groups providing virtual abortions, Sue Swayze Liebel, state policy director for anti-abortion rights group Susan B. Anthony List, told Politico.

But states will face significant enforcement challenges in attempts to restrict patients' access to medication abortions, experts say. And it's an issue that will likely be litigated in court.

With the rise of telehealth and self-managed abortions, enforcement of state abortion laws may shift away from providers to focus on patients who seek abortions and people who aid them, some experts say.

Virtual abortion providers say telehealth and digital services have not yet become mainstream, and there continue to be barriers to virtual care. In the short term, patients will continue to seek out brick-and-mortar clinics for abortion services, which, in many cases, will require traveling out of state.
"One of the challenges we face as a newer form of care is that many people are still learning about the safety and efficacy of medication abortion in general, and the knowledge gap is even greater around the safety and efficacy of medication abortion via telehealth and what the differences are," said Choix's Adam. "As this form of care is better known and understood, and as the restrictions continue to grow, we anticipate even greater influxes of patient requests for care."