Judge rules against one of Trump administration's last chances to restrict abortion

The Trump administration last week suffered a loss in what is likely to be one of its last attempts to restrict the availability of abortion. 

On Dec. 9, a federal district court judge in Maryland refused to lift an injunction against the Food and Drug Administration blocking the agency from enforcing rules that require a person to physically go to a clinic to obtain drugs for a medication abortion.

Those rules present a particular danger during the coronavirus pandemic. Current FDA regulations require people to visit a clinic in person and be handed the abortion pill, increasing the possibility of contracting the virus. Several physicians’ groups and reproductive health organizations sued the agency, saying that the drug could be prescribed via telehealth and then mailed to the patient or picked up at a local pharmacy.

Although the FDA has loosened telehealth restrictions for other drugs, including opioids, it refused to do so for abortion medication. Instead, the administration has fought it every step of the way, through the district court and up to the Supreme Court and back down again. 

In ruling against the administration again, U.S. District Judge Theodore Chuang noted that since the original injunction blocking the FDA’s rules was issued in July 2020, the pandemic had gotten “substantially worse.” The administration argued that since some states had relaxed public health requirements as the pandemic went on, it was fine to require an in-person clinic visit. The court didn’t find this persuasive, saying that simply because people were permitted to go to a restaurant or store didn’t mean they should be mandated to go to the doctor for the abortion pill. 

The court’s holding is in keeping with medical evidence. The drugs used for medication abortion are both highly safe and highly effective. The Guttmacher Institute, which conducts research on abortion policies, says that serious complications appear in fewer than 0.4% of patients. Medication abortion is safer than Viagra, for example, which is often prescribed remotely. 

A study published in the open access journal Contraception: X shows that during the pandemic, abortion clinics have, in states where they are able to, substantially increased their use of telehealth for medication abortions. In northeastern states where abortion access is generally widespread, 73% of clinics reported that they started or increased telehealth options, and not just for medication abortions. Clinics were able to change their practice in other ways that increase safety and convenience, such as following up with patients via internet rather than in person. 

Though the pandemic was the impetus for the increased use of telehealth, there’s no reason to believe the desire for the practice will end when the pandemic does. A multi-country survey conducted in May 2020 found that the use of telehealth was widespread and widely appreciated by patients. Sixty percent of people surveyed wanted to continue to use technology more to communicate with their health care providers.

Guttmacher reports that a clear majority — 57% — of women of childbearing age in America live in a state that is hostile to abortion rights. In many cases, people live in counties where there are no abortion clinics, and getting to clinics can be cost-prohibitive. Telehealth can help make access easier and, by eliminating travel, time off of work, and child care, cheaper. 

The administration of President-elect Joe Biden will be able to roll back FDA restrictions on the abortion pill without an act of Congress or approval from the courts.

Published with permission of The American Independent Foundation.