The next Supreme Court abortion rights battle is coming for the most common form of care

Providers and advocates are bracing for a right-wing legal group’s challenge to telemedicine and a widely used abortion drug that could upend access for millions of Americans two years after the end of Roe v Wade, Alex Woodward reports

A patient holds a mifepristone pill, one of two drugs in a two-drug regimen for a medication abortion, the most common form of abortion care in the US (REUTERS)

After the US Supreme Court revoked a constitutional right to abortion care, tens of thousands of women who are not pregnant have ordered abortion drugs in the event they could need them if, or when, that access is taken away from them.

A wave of state-level anti-abortion laws that followed the Supreme Court’s 2022 decision to reverse the decades-long precedent established by Roe v Wade appeared to fuel an increase of “advance provision” prescriptions of medication abortion drugs across the country.

But another looming Supreme Court decision on abortion rights threatens the availability of a widely used abortion drug that was approved by the federal government more than 20 years ago – and is used in more than half of all abortions nationwide.

A decision to revoke federal approval of the drug mifepristone, less than two years after the court’s far-reaching decision in Dobbs v Jackson Women’s Health Organization, could further upend abortion access for millions of Americans, and potentially force patients to seek surgical care in a country where the procedure is effectively now illegal in more than a dozen states.

“What we’ve been seeing is that the need has not gone down as the restrictions have gone up,” Lauren Jacobson, a nurse practitioner who works with telehealth provider Aid Access, told The Independent. “Restricting abortion doesn’t make it less necessary.”

Lawyers for President Joe Biden’s administration will defend mifepristone’s government approval when the Supreme Court hears oral arguments in the case on 26 March.

In prepared remarks for his State of the Union address, the president vowed to “restore Roe v Wade as the law of the land” – but he’s facing a Republican-controlled Congress that has firmly rejected abortion rights and a balkanized landscape of state and local restrictions targeting millions of Americans’ reproductive healthcare.

The Biden administration has also warned that a Supreme Court decision that targets the FDA’s approval process could open the door for other right-wing-fuelled legal challenges to other drugs, including HIV prevention medication, gender-affirming care, contraception and Covid-19 vaccines.

“It’s not just a reproductive health issue,” Ms Jacobson said. “People also need to look at the bigger picture there.”

‘Pulling the rug out’ from under abortion patients

Before the June 2022 decision that reversed Roe v Wade, Aid Access received roughly 6,000 advance provision requests for abortion drugs, or roughly 25 per day since the group began offering medication in the US, according to a study published in the journal JAMA Internal Medicine this year.

That daily figure spiked to roughly 118 per day, amounting to more than 42,000 requests.

Requests spiked in the weeks after a leak of the Supreme Court’s draft opinion was published and after court rulings in 2023 took aim at the drug mifepristone.

In 2023, roughly 30 per cent of the group’s requests came from Texas alone, according to Aid Access. Texas, home to roughly 30 million people, has effectively outlawed most abortions, including medication abortions.

Roughly 80 per cent of requests to Aid Access have come from states where abortion is outlawed or under severe restrictions, “and so what this shows us is that the restrictions being put in place are not decreasing the need – it’s just changing how people access care if they’re able to access it at all,” Ms Jacobson told The Independent. “The need is still there.”

Removing the most commonly used abortion drug from the market would be “pulling the rug out from under people who are seeking abortions,” she said.

Up to 16 per cent of all abortions relied on telemedicine last year, according to the Society of Family Planning.

How mifepristone became a target

Mifepristone was first approved for use by the FDA in most cases up to 10 weeks of pregnancy in 2000. A vast majority of all abortions occur within the first nine weeks of pregnancy, and more than half of all abortions in the US are medication abortions, according to the Guttmacher Institute.

From 2019 through 2020, nearly 93 per cent of all abortions were performed before the 13th week, according to the US Centers for Disease Control and Prevention.

A medication abortion typically involves a two-part protocol – mifepristone, which blocks the hormone progesterone, which stops a pregnancy from growing, followed by misoprostol, which helps the uterus contract. The medication also is used for miscarriage treatment.

In 2022, shortly after the Supreme Court’s decision in the Dobbs case, the right-wing legal group Alliance Defending Freedom filed a federal lawsuit in Texas to challenge the FDA’s approval of mifepristone and overturn a rule from the Biden administration that expanded telehealth access.

The Alliance for Hippocratic Medicine incorporated in Amarillo within the month that the complaint was filed, increasing the likelihood that the complaint would land in a federal court district with an ideologically like-minded judge.

Alliance Defending Freedom, among the most influential conservative Christian legal advocacy groups in the US, also helped draft anti-abortion laws used to overturn Roe and has championed litigation and legislation targeting birth control and LGBT+ rights.

Last year, in response to the group’s lawsuit, US District Judge Matthew Kacsmaryk – a former right-wing activist lawyer who was appointed to the federal judiciary by Donald Trump – suspended the FDA’s approval of mifepristone.

Abortion rights advocates, providers, major medical groups and legal analysts condemned the ruling, and the US Department of Justice and Danco Laboratories, which manufactures mifepristone, filed an appeal, which landed at the right-wing Fifth Circuit, which has jurisdiction over the Amarillo court.

That panel partially upheld Judge Kacsmaryk’s ruling, and an appeal to the nation’s highest court followed.

A major medical journal retracted two papers from 2021 and 2022 that the plaintiffs cited in their case to the nation’s high court, throwing into doubt any medical basis for their position, while anti-abortion groups, Republican officials from 25 states and more than 140 members of Congress have signed briefs with the Supreme Court to block mifepristone’s availability.

Alliance Defending Freedom’s senior counsel Erin Hawley, wife of Republican US Senator Josh Hawley, has argued that the FDA’s approval of mifepristone “does not reflect scientific judgment but rather a politically driven decision to push a dangerous drug regimen.”

Abortion rights advocates and providers have warned that a Supreme Court ruling that eliminates or further restricts access to mifepristone could drastically impact an already fragile landscape for abortion care.

“Worst-case scenario, the ruling would likely push abortion seekers later into gestation, which requires them to pursue surgical abortions, which are less accessible and more expensive than medication abortions,” according to Serra Sippel, interim executive director of The Brigid Alliance, which provides logistical support to abortion patients forced to travel often long distances for care.

“Then you have the travel barriers and the financial barriers that people will face, barriers that they wouldn’t face if they had access to medication abortion,” she told The Independent.

Last year, the group supported more than 1,400 people, who travelled an average of 1,300 miles roundtrip – marking a 30 per cent increase since the Dobbs ruling and the wave of anti-abortion laws that followed.

Those travel costs have also surged by 27 per cent, up to an average of $2,300 per patient.

“There are resources out there, and I think the challenge is going to be communication, and how do we make sure that people know that even with a ban on medication abortion, there are ways to get to abortion providers,” Ms Sippel said.

Threats to the ‘gold standard’ of telemedicine

For patients using Aid Access, that requires filling out a consultation form on its website, and then a provider reviews the request before the group packages and ships out the medication through the US Postal Service. The costs are roughly $150.

The group has allowed physicians in Democratic-led states with so-called “shield” laws for providers to prescribe and mail pills directly to patients in anti-abortion states.

Such laws – adopted in Colorado, Massachusetts, New York, Washington and Vermont – protect abortion providers who mail pills to restricted states from inside their borders, allowing a breakthrough expansion of abortion care in anti-abortion states.

After the publication of the JAMA study, Aid Access saw another spike in advance provision requests. If the Supreme Court strips mifepristone’s approval, “it’s going to make it harder for people to access the pills, and it’s going to make it harder for providers to access them and give them to people, and it might change the way that people prescribe,” Ms Jacobson said.

“Telehealth is becoming a gold standard in healthcare now, and since you no longer have to see people in person to give mifepristone – it’s been shown for three decades that it’s safe and effective – and it’s no different with telemedicine,” she told The Independent. “Some providers might find ways to get mifepristone and prescribe it and send it anyways – there are avenues for that. But I think more than anything, these kinds of things instil a sense of fear in patients that their rights and autonomy over their bodies are being further limited and taken away.”

Patients will need help travelling to their appointments, but “it’s going to get worse,” Ms Sippel said. “But even when it gets better, there are still people who are at the margins who don’t have the resources to access the care they need.”

Meanwhile, major pharmacy retailers Walgreens and CVS are beginning to offer prescription mifepristone in stores across the US, a move that could significantly expand access to abortion care.

Before the Covid-19 pandemic, abortion drugs could only be obtained in person from a health provider who prescribed them.

In 2021, the FDA removed that in-person requirement, allowing the pills to be shipped through the mail like many other prescription medicines.

The agency also opened a certification process for retail pharmacies to dispense the drug, opening the door for some of the most common brick-and-mortar stores in cities and towns across the country to make abortion drugs available to millions of Americans.

A phased rollout of the drug’s availability in two of the largest pharmacy chains “will reduce unnecessary delays to accessing care, and potentially the number of women who will be forced to travel out of state,” Ms Sippel said in the wake of that announcement.

But the drug still won’t be available for abortion care in those stores in states where abortion is effectively illegal, underscoring the patchwork state of reproductive healthcare even among some of the biggest pharmacy brands in the country.

“Hundreds of thousands of pregnant people who live in states where abortion is banned and mifepristone is illegal will not be impacted by this decision,” Ms Sippel said.