What the Supreme Court's abortion pill case could mean for California

Lee had just been dumped when she found out she was pregnant.

With no car, no job and no support, the 23-year-old – who requested medical privacy to keep her last name secret – ended up at the Hey Jane virtual clinic, where she was quickly examined and prescribed abortion drugs.

Four months later, thousands of Californians in a similar situation held their breath as the U.S. Supreme Court considered a case that could rewrite healthcare rules for more than two-thirds of U.S. abortions, limiting access to a popular drug even in states. where it remains legal.

The justices expressed clear doubts about a lower court's decision to overrule the Food and Drug Administration and restrict mifepristone — the first in a two-drug protocol that now accounts for 63% of all legal abortions in the United States States – indicating that they are unlikely to recover. Byzantine rules for prescribing the medication.

“Should we also take into account your argument that no one else… in America should have this drug to protect your clients?” Justice Ketanji Brown Jackson said in a sharp exchange, later echoed by her frequent rival Justice Neil M. Gorsuch.

But advocates in California say that even if current rules remain in place, the case poses a growing threat to reproductive rights in “sanctuary” states — especially as legal challenges focus on telehealth, which as of 2021 has accounted for 16% of American abortions. .

These figures do not include the approximately 6,000 abortions estimated to occur each month outside the formal medical system, the vast majority of which are also caused by a combination of mifepristone and misoprostol obtained through the mail, according to a study this week in the medical journal JAMA.

“I worry that people don't realize how important telehealth is – it's an important pillar in the abortion care landscape,” said UC San Francisco professor Ushma Upadhyay, an expert on reproductive health care. “People don't understand how important this could become in the future.”

'Baffling, surprising and unexpected'

The court's decision on mifepristone is not expected until June. The reason the stakes are high is that, unlike the decision in Dobbs vs. Jackson Women's Health Organization, which fought Roe vs. Wade in 2022, a Supreme Court ruling to restrict the drug would reverse a series of major changes in the way it is used. prescribed and provided nationally.

Care that can currently be delivered by a nurse-midwife via a brief video call or an online questionnaire would revert to a time-consuming and costly series of clinic visits with a physician. Medical abortion could be offered just 49 days from the start of a patient's last menstrual period, instead of up to 10 weeks as is currently the case. These changes would also make prescribing mifepristone via telehealth impossible, leaving some dependent on a less effective regimen with more unpleasant side effects.

Telehealth is the only viable option for patients who can't take a sick day and can't find a sitter – facts from the Centers for Disease Control and Prevention show that the lion's share of abortion patients are already mothers — or take a ride to a clinic that may be hours away by public transportation, experts say.

“Patients have said to me, 'I have a job that doesn't allow me to take time off.' I have children and no child care,” said Dr. Michele Gomez of the MYA Network, a consortium of virtual providers, which has helped many patients with Medi-Cal. “A lot of people talk to me while they're working. I've had so many people [take appointments] with their children crawling all over them.”

Women who relied on the medication say that it was the most convenient and safest option.

“I knew the locations of the clinics, but it was difficult to get there,” Lee said of her abortion. “It all felt so scary, on top of being in the situation.”

Gomez said that in the past, doctors had to watch patients take the pill for years. The elimination of these and other rules over the past decade has helped push medication abortion from the margins of care to the heart of reproductive rights, the Bay Area provider and others say.

“I can steer [pills] send by post when it suits me,” she said.

The changes also cleared the way for doctors in California and five other states to prescribe and send abortion drugs to patients in jurisdictions where it is banned under so-called shield laws.

“Mail abortion care is now the most viable form of access for most of the country,” said Kiki Freedman, co-founder and CEO of Hey Jane, an abortion telehealth startup. “Any change in the way mifepristone is prescribed is an attack on accessibility, period.”

A growing number of experts believe that the rise of telehealth could explain why the number of abortions has jumped in the wake of the Dobbs decision, even as 21 states have banned the procedure in whole or in part.

“This is mind-boggling, surprising and unexpected – we expected the numbers to come down,” Upadhyay said. “There are many unmet needs that are being met through telehealth.”

'Half of the patients I see are in the car'

The rapid rise of medication abortion is one reason why anti-abortion activists have fought so hard to get rid of it, many say.

“Telehealth abortion is concerning on that side because they know it's safe and effective and people can end a pregnancy on their own,” said Michele Goodwin, a law professor at UC Irvine and an expert on reproductive justice. “That is threatening to them.”

Medication abortion using mifepriestone was already cheaper, faster and more easily accessible than vacuum aspiration and other clinical procedures when telehealth became available in 2020 under emergency pandemic rules.

But it became radically more accessible and less expensive in 2021, as virtual providers, including Hey Jane, Abortion on Demand and 145 Abortion Telemedicine, set up shop alongside brick-and-mortar clinics under the FDA's new leadership.

And more doctors felt compelled to offer it in 2022, as state bans pushed abortion seekers into neighboring states, extending wait times at in-person clinics in Colorado, Illinois and Kansas, where it can take weeks to get an appointment at a clinic to make.

“Even before the Dobbs decision, I asked myself, what can I do?” said Dr. Stephanie Colantonio, a Los Angeles pediatrician who began providing care in 2021. “It was very meaningful to me that I could offer this to people.”

California has also taken steps to make healthcare more accessible, although barriers still exist. Medi-Cal covers about half of all abortions in the state — almost equal to the share of births it pays for — but billing for telehealth is still new, and few providers can do it.

“California only recently updated its law last year to address telehealth for abortion,” Upadhyay said. “For most [Medi-Cal] Patients have to decide: Do I want a free abortion or do I want to pay and get telehealth?”

That decision is often fraught.

“We see a lot of patients during the lunch hour,” says Leah Coplon, nurse-midwife and director of clinical operations at Abortion on Demand. “I feel like half the patients I see are in their cars.”

'In the comfort of my own home'

Seeking pills through the mail may also be the only physically accessible option for disabled abortion seekers.

“The disability community is very concerned about this because it could result in a complete denial of care,” said Jillian MacLeod, reproductive justice legal officer at the Disability Rights Education & Defense Fund, which filed a brief in support of abortion at a distance.

Still others say telehealth simply feels safer to them.

“I wanted to be able to do it in the comfort of my own home,” says Charlie Ann Max, a Los Angeles model who took the pills earlier this year. “That felt the safest.”

With mifepristone under threat, some providers are looking for alternatives that keep telehealth available to those who need it most. Many say this would mean prescribing only the second drug in the protocol, misoprostol, which is used both to induce labor and to terminate the pregnancy.

“That would be the backup,” says Dr. Jayaram Brindala of 145 Telehealth. “It's not clinically ideal, but still a good option for those in the first 13 weeks.”

Gomez agreed. “It's very effective, but it's not what I would recommend to my sister, my best friend or my daughter,” the doctor said.

Last year, Governor Gavin Newsom announced that California would stockpile the drug to maintain an emergency supply.

“Those who oppose access to abortion have made it clear that they will not stop seeking new ways to roll back abortion access and rights across the country,” said Atty. Gen. Rob Bonta said.

His Justice Department will use “every tool” at its disposal to keep California a haven for reproductive health care, he said.

“Whatever happens in the mifepristone case at the Supreme Court, it will not be the end of our fight,” Bonta said.

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