The Promise of Telehealth for Abortion

Abstract

The COVID-19 pandemic catalyzed a transformation of abortion care. For most of the last half century, abortion was provided in clinics outside of the traditional healthcare setting. Though a medication regimen was approved in 2000 that would terminate a pregnancy without a surgical procedure, the Food & Drug Administration required, among other things, that the drug be dispensed in person. This requirement dramatically limited the medication’s promise to revolutionize abortion because it subjected medication abortion to the same physical barriers of procedural care.

Over the course of the COVID-19 pandemic, however, that changed. The pandemic’s early days exposed how the FDA’s in-person requirement facilitated virus transmission and hampered access to abortion without any medical benefits. This realization created fresh urgency to lift the FDA’s unnecessary restrictions. The advocacy of researchers and litigators, working in concert to advance evidence undermining the purpose of the in-person dispensing requirement, culminated in the FDA permanently removing it in December of 2021.

The result is an emerging new normal for abortion through ten weeks of pregnancy—telehealth—at least in the states that allow it. Abortion by telehealth (what an early study dubbed “Telabortion”) generally involves a pregnant person meeting online with a healthcare professional, who evaluates whether the patient is a candidate for medication abortion, and if so, satisfies informed consent requirements. Pills are then mailed directly to the patient, who can take them and complete an abortion at home. This innovation has made early abortion cheaper, less burdensome, and more private, reducing some of the barriers that delay abortion and compromise access.

In this chapter, we start with a historical account of how telehealth for abortion emerged as a national phenomenon. We then offer our predictions for the future: a future in which the digital transformation in abortion care is threatened by the demise of constitutional abortion rights. We argue, however, that the de-linking of medication abortion from in-person care has triggered a zeitgeist that will create new avenues to access safe abortion, even in states that ban it. As a result, the same states that are banning almost all abortion after the Supreme Court overturned Roe v. Wade will find it difficult to stop their residents from accessing abortion online. Abortion that is de-centralized and independent of in-state physicians will undermine traditional state efforts to police abortion, but will also create new challenges of access and disproportionate risks of criminalization.

Note:
Funding Information: None to declare.

Conflict of Interests: None to declare.

Keywords: Telemedicine and the Law, Health Privacy, Reproductive Justice, Abortion, FDA Law, Drug Law, Constitutional Law, Administrative Law, Gender and the Law, Health Law, Bioethics and the Law, Public Health Law, Health Disparities