Patients In States With Abortion Bans Might Lose Remote Access To Mifepristone

0:00From Spider-Man to a new Steven Spielberg movie, we know the TV and movies you'll want to watch this summer. I'm excited about this film. I just know suspense, intrigue, aliens. And I'm like, all right, Spielberg, I'm in. Check out the summer guide from Pop Culture Happy Hour. Listen on the NPR app or wherever you get podcasts.

0:26At the center of the current legal battle over abortion is telehealth access to one drug, mifepristone. Since the Supreme Court overturned Roe v. Wade in 2022, Mifepristone has become the dominant method of abortion in the United States, filling the gap left by clinic closures in states with abortion bans. And the number of abortions has actually risen slightly in the years since Roe was overturned. That's a problem for abortion opponents, and they're taking aim at one of the main ways Mifepristone is prescribed, via telehealth. Last week, they scored their first big win. In response to a Louisiana lawsuit, a federal appeals court blocked mifepristone from being prescribed virtually or mailed to patients.

1:09The drugs manufacturers challenged the decision, and this week the Supreme Court temporarily restored telehealth access while it considers the case. That stay expires Monday, and briefs from both sides are due today. If the lower court's decision is upheld, it could upend how abortions are provided in the U.S., ending telehealth access for people in states with bans, and making it harder to access even in states where abortion is legal. It could also limit access to the drug for people using it for miscarriage care. I'm Jen White. You're listening to the 1A Podcast. Today we ask, what's next in the legal and political battle, and what does it all mean for patients and reproductive health providers?

1:49We'll be back with more after this short break. Stay with us.

1:56From Spider-Man to a new Steven Spielberg movie, we know the TV and movies you'll want to watch this summer. I'm excited about this film. I just know suspense, intrigue, aliens, and I'm like, all right, Spielberg, I'm in. Check out the Summer Guide from Pop Culture Happy Hour, listen on the NPR app, or wherever you get podcasts. Welcome back to the 1A Podcast. We're talking about telehealth access to mifepristone, a drug commonly used in abortions and miscarriage care. Joining us from here in D.C. is Shefali Luthra. She covers reproductive health for The 19th News. She's also the author of Undue Burden, Life and Death Decisions in Post-Roe America.

2:35Thank you so much for having me. And we want to hear from you. If you've had a miscarriage or abortion, did you use telemedicine to get mifepristone? What will change in your life or your community if male access to this medication goes away permanently? If you're a health care provider navigating these legal challenges in real time, what are your patients asking you and what are you telling them? Email us at 1a at wamu.org. Now, Shefali, the lawsuit at issue here is one filed by the state of Louisiana. It challenged the FDA's policy allowing mifepristone to be prescribed via telehealth. What is Louisiana arguing?

3:10Louisiana is making a host of arguments, but critical is that they say the FDA did not properly review the safety of mifepristone when approving it for telehealth, which it did in 2023. They say that in actuality, mifepristone is very dangerous, causes all these complications, is forcing patients to require emergency care, and is subverting their abortion ban by being available through telehealth. They're also arguing, and this is a very common argument we hear from abortion opponents, that its availability by telehealth facilitates people being coerced into taking it, getting abortions performed when they wouldn't have wanted them, maybe wouldn't have had them if there was an in-person requirement available.

3:52I want to be really clear. The FDA is known for its rigorous standards for the work that goes into approval. All of the evidence shows that mifepristone is a very safe, very effective drug, including by telehealth. People actually take it at home. They don't have to take it in the doctor's office. That's standard of care. And this coercion argument that is being made in this case and in other cases is actually not really borne out by the evidence. What we know from the research that has been done is typically when people experience coercion with regard to abortion, it's in the opposite direction, being denied access to abortion rather than having it forced upon them.

4:33However, these are the arguments being made in this case. They have found some sympathetic ears in the appeals court, and it's very possible they do at the Supreme Court as well, which could have very substantial ramifications for how people get mifepristone and get abortions in this country. Now, this isn't the first case targeting FDA telehealth policy. Two years ago, the Supreme Court unanimously rejected a case that tried to restrict mifepristone access. They said the The plaintiffs in that case didn't have legal standing to sue. What's different this time? What's really different in this case is the question of standing.

5:09And in that case from a couple of years ago, when the Supreme Court unanimously rejected the case, they said the plaintiffs, this group of doctors based in Texas who said that the availability of mifepristone caused them problems, didn't have standing. They said the harm they alleged was actually too speculative because these doctors said, oh, we see patients showing up with complications, or we could see them showing up with complications. The Supreme Court said that's not really compelling. Someone needs to come back with a better argument, better proof that this actually affects them. But they didn't get into the merits of this.

5:43And so now Louisiana is coming in saying there is harm being experienced as a state with its laws and also alleging this reproductive coercion on behalf of a specific woman in the state. And so I think the question is whether the Supreme Court says this is, in fact, adequate standing. So far, the federal government has said, no, there isn't good standing. You haven't shown sufficient harm to you. This should be tabled. Let's not even get into the merits. We don't know if that will happen again. Well, the Supreme Court will weigh in by 5 p.m. on May 11th. If the Supreme Court lets stand the Fifth Circuit's ruling blocking male access to Mifepristone, what happens next?

6:26It's very complicated. And in some ways, we don't really have great precedent for something like this. The Supreme Court and federal courts don't typically undo decisions by the FDA. However, because this has been telegraphed for quite some time as something that could happen, this is a years-long project by the anti-abortion movement, Medical providers I've spoken with have been thinking about contingency plans. In particular, a lot of them will switch their regimen to a different medication combination, higher doses of a different drug called misoprostol. This is also very safe and very effective in terminating a pregnancy.

7:03It is also safe to do at home. You don't need to go to a doctor's office, et cetera. It's a bit less effective. It's a bit less safe. It is not the ideal when mifepristone is available, but that's the alternative that will be made available through telehealth. And people seeking abortions in person will likely still have access to mifepristone. I think it's really important for us to note that two things can be true in this situation, right? For one thing, people are still going to have access to abortions, including by telehealth, but they will not have access to the most effective gold standard form of care because of legal intervention.

7:41And if the Supreme Court says mifepristone can continue to be mailed. What happens next in the legal fight? I think it really depends on how the Supreme Court makes that argument. Do they send this back down to the lower courts to continue proceeding, in which case this case remains live, but while it is continuing to be litigated, Mifepristone stays available? That's one option. Or they simply say, this is not a good case, it's over. And in that case, what we would see is that this is one part of a multi-pronged strategy by anti-abortion activists to try and restrict mifepristone from telehealth and to try and stop telehealth abortions broadly.

8:20There are other cases making their way through the courts. Other states are trying to pass laws that might restrict telehealth and restrict mifepristone. And those efforts will continue because this is a very, very important priority for abortion opponents for the reason you got it earlier. Abortions are up and not down despite the fall of Roe v. Wade, and that is in large part because of the availability of medication abortion and specifically its availability through telehealth. I know this is a complicated question, but you follow the Dobbs decision that overturned Roe v. Wade, turned the right to regulate abortion back over to the states.

8:55But male distribution of mifepristone means people can access abortion care even in states where it is not allowed. So how is that legal? This is actually a very complicated legal battle playing out between states with very strong abortion protections and very strong restrictions. States with really strong abortion protection laws, places like New York, California, Massachusetts, et cetera, have passed these laws that say, if you are a health provider, you are operating in our state and you are providing reproductive health care that is legal and protected here, we will not comply with out-of-state prosecutions against you, regardless as to where your patient is, you are providing care from our state where it is legal and safe to do.

9:40Meanwhile, states with abortion bans are saying, hold on, you're violating our abortion laws. And they say that the main act, the abortion, is happening in their states. And so what's happening is states with abortion bans are challenging these so-called shield laws in states like New York, Massachusetts, California, targeting individual providers. and what everyone ultimately believes is that these questions, which state law is ultimately supreme, will have to be settled in federal courts, very likely the Supreme Court. Well, I want to quickly take a step back and look at the political context for this fight.

10:15This case is moving through the courts at the same time as the Trump administration is conducting its own review of Mifepristone's safety, more than two decades after it was first approved by the FDA. And abortion opponents who believe that terminating a pregnancy is morally wrong are not happy with how long that's taking. Marjorie Dannenfelser is president of the influential anti-abortion nonprofit Susan B. Anthony Pro-Life America. She told the Wall Street Journal, Trump is the problem. The president is the problem. She also said, it's shameful that the Trump administration's inaction has forced pro-life states to take their battle to the federal courts.

10:50So just briefly talk us through the politics that might explain why the Trump administration hasn't done more to crack down on the Pristone access. At its core, it's because the Trump administration knows what many of us know. Restrictions on abortion are unpopular. Even in states where Trump won, he also got a lot of votes from people who support abortion and do not want further restrictions. That's why, despite being touted as this champion of the anti-abortion movement, which he was in his first term, he's really tried to take a step away, put some distance between himself and the movement over the course of this administration.

11:29And that's resulted in a lot of people who oppose abortion saying, we feel really exiled from the movement. We are not getting what we want. And they're trying to put a lot of pressure on this administration, but also more and more looking to 2028 and possible successors to Trump to see if they might have better luck with other Republicans who may be more sympathetic to the cause. That's Shefali Luthra. She's a reproductive health reporter for The 19th News and author of Undue Burden, Life and Death Decisions in Post-Roe America. Shefali, it's always great to talk to you. Thanks. Coming up, what this legal fight means for medical providers and patients living in states with no access to in-person abortion care.

12:10From Spider-Man to a new Steven Spielberg movie, we know the TV and movies you'll want to watch this summer. I'm excited about this film. I just know suspense, intrigue, aliens. And I'm like, all right, Spielberg, I'm in. Check out the summer guide from Pop Culture Happy Hour. Listen on the NPR app or wherever you get podcasts. Let's get back to our conversation about telehealth and abortion access. I'm joined now by two healthcare professionals to take us through what the fight over Mifepristone access means for people seeking abortions or care for miscarriages. We're here with Leah Copeland.

12:44She's a nurse midwife and director of clinical operations for telehealth and mail order abortion provider, Abortion on Demand. Leah, welcome to the program. Thank you. And also with us is University of Ottawa professor Dr. Angel Foster. She's the co-founder of the nonprofit Massachusetts Medication Abortion Access Project. That's a virtual medical practice that serves patients across the U.S. It's protected by shield laws from legal action by states that restrict abortion. Dr. Foster, welcome to 1A. Thank you so much for having me. Dr. Foster, I just want to start by talking about Mifepristone itself.

13:18She finally explained a little bit about the drug's efficacy, but explain how it's used and what the research says for how effective it is. Mifepristone was first approved in the United States in 2000, so it's been available for over 25 years in combination with a second medication called mesoprostol. It's been available globally for nearly 40 years. And the evidence is very clear. Mifepristone, when used in conjunction with mesoprostol, is safe and highly effective. It results in a complete abortion about 98 % of the time. And we have tremendous evidence about the safety of this regimen. And this regimen is safe if it's provided from a brick-and-mortar clinic, if it's provided through a telemedicine service that involves a virtual consultation, and it's safe and effective if it's provided by a telemedicine service that's asynchronous.

14:15We also know that it's safe and effective if it's provided by community groups or through international clinics as well. The science really is clear. As we've already discussed, this is a politically divisive issue. Louisiana Senator Bill Cassidy, a Republican among others, opposes the mailing of abortion drugs. Here he is at a Senate hearing in January. Now, these drugs are not safe, one-of-the-mill drugs. They're certainly not safe for the unborn child, but there can also be potential complications for the mother. So, Dr. Foster, when you hear this argument from elected leaders or other people, what's your response?

14:54That simply flies in the face of 25 years of studies in the United States, 40 years of studies globally. All medications, all medical interventions have failure rates. All medical interventions sometimes have complications. But mifepristone and mesoprostol, that's astonishingly small. And we know how to manage those complications when they arise. And whether it's a brick and mortar facility or a telemedicine service, we all work very closely with our patients to make sure that if our patients need follow-up care, they get high quality follow-up care. Well, we got this text from a member of the 1A Tax Club, but Mifepristone is the best solution for ending a troubled pregnancy.

15:34In cases of voluntary abortion, it is used early, so it avoids those barbaric second trimester and controversial abortions. It is also life-saving in cases of involuntary abortion. It avoids major surgery complications or future infertility. Now, some states have outlawed it, except when the doctor decides it's necessary in cases of miscarriage. But what we have seen is that outlawing this drug at all has a chilling effect in those cases too. The bottom line is that more women will die if this drug is outlawed. We also heard from Audrey in Pittsburgh who emailed, I'm a menopausal woman who needed a DNC for diagnostic reasons and my doctor prescribed this medication for the evening before the procedure to help ease the process and minimize complications.

16:16No abortion was involved. We want to keep hearing your stories. Email us at 1a at wamu.org and I want to bring another voice into the conversation. Dr. Colleen Denny is Service Chief for Family Planning at NYU Langan Hospital. She's a professor of obstetrics and gynecology at NYU Grossman School of Medicine. She's also the chair of the American College of Obstetricians and Gynecologists Committee on Ethics. Dr. Denny, welcome. Thank you so much for having me. Apologies for being late. No worries. I just want to note that mifepristone is used for more than abortions. How would restrictions on mifepristone affect other people who need to access this drug, Dr.

16:56Denny? How do you use it in your practice? Sure. So, you know, we've had mifepristone available to us to use for reproductive health care since 2000. And initially it came on the market, of course, for medication abortion. But in these 26 years now, we've learned that it's actually very useful for and has become standard of care for a lot of other types of reproductive health care. So probably the most common thing that I see aside from medication abortion is people who've had an early pregnancy loss or a miscarriage. And they still have some tissue that hasn't passed and they're looking to avoid surgery.

17:31Mifepristone is one of the medicines that we give for these people after they have a pregnancy loss. So certainly the loss of mifepristone access will affect people who've had miscarriages. It will make their care worse. And it's standard of care now. The American College of Obstetricians and Gynecologists recommends the two-drug regimen for people who have this diagnosis. We also use it in care for people who've had stillbirths, people who have a pregnancy loss much later in their pregnancy. If we give mifepristone first, their experience of labor with, unfortunately, no longer living baby is shorter and less traumatic for them.

18:09So mifepristone has really become useful in a lot of different areas of reproductive health care. Barriers to access are going to affect a lot of different types of patients who are seeking care with us. Let's go to our voicemail box. We got this message from Jennifer in Tucson, Arizona. 44 years ago, I had a miscarriage and ended up spending three days in a hospital and had to endure a surgical DNC followed by a lot of poking and prodding by the doctor. In 2022, our daughter also had a miscarriage, but with a very different outcome, as she was prescribed Mifepristone to safely complete her pregnancy loss entirely at home.

18:47If Mifepristone is no longer available through the mail, I'm appalled to think what women may have to go through in the future when faced with a pregnancy loss. In addition to the toll on women's physical and emotional health, consider the unnecessary expenses that a hospital stay incurs. And that's if there's even a hospital available to those living in rural areas. And just to note that DNC stands for dilation and curatage. It's a surgical procedure performed to remove tissue from the uterus. Leah, we heard Jennifer mention access to care for people living in rural areas. You spent a long time working with Maine Family Planning.

19:25Maine is one of our most rural states. When you think about the current landscape of obstetric and gynecological care in the U.S. right now, how would you describe the importance of telehealth access to Mifepristow? So Maine is a very good example because, as you mentioned, it is a very rural state. And prior to telehealth being available in Maine, many people had to travel hours and hours just to get the care they needed for an abortion. with the launching of telehealth in our state, that those four-hour travel times were reduced to about 20 minutes in some cases. But one thing I've noticed in practicing telehealth for about 10 years right now, providing abortion care this way, is that proximity to a clinic doesn't necessarily mean that folks want to go to a clinic.

20:13So some of the folks we see for telehealth might be in a city where there's multiple clinics, but there's so many other reasons that people may choose telehealth, including needing to take time off of work, for safety reasons for folks if they're not able to tell partners or parents, not having cars, again, being in a rural area. So telehealth is not just for folks who are living rurally far from clinics, but it's sometimes the best and safest method for folks to get care. Dr. Foster, I saw you nodding as Leah was speaking there. What's been your experience around why people may access telehealth?

20:48Well, the Massachusetts Medication Abortion Access Project, or the MAP, is a shield law provider. So we provide care to patients in all 50 states, all U.S. territories, as well as to those with military and State Department addresses. And in our experience, because the overwhelming majority of our patients are from states where there are near total bans on abortion or restrictions on abortion in the first trimester of pregnancy. The patients that we're seeing are patients who often do not have access to a brick-and-mortar facility. They don't have access to a brick-and-mortar facility in their own state, and they don't have the ability to travel out of state for in-person care.

21:32However, we also have patients who simply prefer this method of abortion care, and so both of those things are true. We got this from Jay in Oklahoma who emailed, how are people using Mifepristone for non-abortion medical needs going to access it? And this is if the Supreme Court decides to block telehealth access. Are they going to have to jump through more hoops or face legal challenges and prove their use in court? Dr. Denny, what kind of conversations are you having with your colleagues and patients right now around this very question? I think that it's a really important question. We think a lot of the news is about medication abortion access, but as we're saying as well, there are a lot of people who are going to need this for miscarriage management if they have a stillbirth.

22:15And not being able to access mifepristone is just going to make their care worse, right? We're harming them. We are giving them less than the standard of care that we know is safe and effective because of these legal restrictions. So for somebody who, say, has a pregnancy loss in a state where they can't access nifepristone, there are other regimens we can offer them, but they're more likely to have heavy bleeding. They're more likely to need more procedures, like our voicemail message said before. They're more likely to have a procedure that they didn't want because they need it for their safety.

22:46So there's a lot of trickle-down effects for people who have no interest or are not interested are thinking about medication abortion still can benefit from mifepristone being available as a safe and effective treatment for them. Now, we reached out to the pharmaceutical companies who asked the Supreme Court to let them temporarily resume mailing mifepristone. GenBioPro CEO Evan Massengill had this to say, quote, with this critical temporary administrative stay granted, we anticipate some of the chaos and confusion inflicted on patients and providers over the weekend will subside. GenBioPro remains committed to making our evidence-based essential medication available to people in the United States and will continue to use all legal and regulatory avenues available to do so.

23:30And we'll post GenBioPro's emergency filing on our website where you can see it. Leah, when the Fifth Circuit decision blocking the mailing of Mifepristone came down on Friday, what happened in your practice? So because we have been prepared for this, and most specifically three years ago, in similar times, we had all of our systems in place to switch over to a mesoprostol-only protocol. And our approach was really to talk to each patient and offer them their options, either pivoting to a mesoprostol-only abortion, connecting them with local clinics if that was preferable to go in person. And we kind of went through all of those different options and talk them through those.

24:18The patients who did proceed with a mesoprostol-only abortion, we were able to contact after the decision came down that we could provide mifepristone and reached out to them again and offered to consent them and provide the mifepristone with the mesoprostol. And Dr. Foster, what about for you? Our experience was quite similar. So at the MAP, we care for between 3 ,000 and 3 ,500 patients a month. And over the weekend, we were really responding to three different groups of patients. The first group were the 350 or so patients whom we had already sent a package with mifepristone and mesoprostol, but they hadn't yet received the package.

24:57So we were getting a lot of panicked emails and contacts from our patients. you know, will the postal system interfere with my package? Is it still legal for me to take mifepristone if I receive it in the mail? Will I get in trouble if I take mifepristone? So we were managing that and responding to those queries. The second group, and very similar to what Leah said, was the patients who had already been approved for our service, but who had not yet received medication abortion pills. And I'll also just say something about the timing of this decision, which was especially cruel. What we see with our patients is that many of our patients in the last week of the month request pills from our service, we approve them, but then they can only pay for those pills after the first of the month when they've gotten their paycheck.