How anti-choice advocates and 'Comstockian mail control' could derail COVID's strangely positive impact on abortion rights
In a strange turn, the pandemic actually expanded abortion access. In July 2020, a US District Judge in Maryland ruled that in-person requirements for people seeking a medication abortion were a "substantial obstacle" to abortion access during the pandemic and, therefore, likely unconstitutional. The fact that medication abortion must be administered within the first 10 weeks of pregnancy added to the difficulties with meeting the in-person requirements. The decision was backed by the American College of Obstetricians and Gynecologists, which argued that FDA restrictions on prescribing medication abortion through telemedicine are not medically necessary.
Unfortunately, the Trump administration challenged the ruling and the United States Supreme Court reinstated the restrictions on medication abortion being mailed in January. Joined by the other two liberals, Justice Sotomayor wrote in her dissent that, "This country's laws have long singled out abortions for more onerous treatment than other medical procedures," adding that the FDA's rule imposes an "unjustifiable, irrational, and undue burden on women seeking an abortion during the current pandemic." The Biden-Harris administration opposed the Supreme Court's ruling in April lowing people to be prescribed the abortion pill by mail for the remainder of the pandemic. Dr. Janet Woodcock, the acting F.D.A. commissioner, wrote in a letter explaining the policy change, that studies of the pandemic experience "do not appear to show increases in serious safety concerns," like bleeding, ectopic pregnancy or the need for surgical interventions "occurring with medical abortion as a result of modifying the in-person dispensing requirement during the Covid-19 pandemic."
Requiring people go to a doctor's office to get a pill that could be prescribed by phone and mailed increases the risk of contracting covid.
Medication abortion, also known as the abortion pill, is a particularly relevant political issues right now as it could theoretically be prescribed over telemedicine and mailed so people who needed abortions could avoid doctor's offices and unnecessary contact. Medication abortion refers to prescribing two pills, mifepristone and then misoprostol, to terminate a pregnancy less than 11 weeks along. Currently, 32 states require medication abortion to be prescribed by a physician, as opposed to a physician's assistant or an advance practice nurse, and 19 states require the prescriber be physically present when the pill is taken. While the first requirement is certainly cumbersome and unnecessary, the second causes significant access issues during a pandemic. Requiring people go to a doctor's office to get a pill that could be easily prescribed by phone and mailed increases the risk of contracting covid.
Despite evidence, states are responding to the new guidelines by passing new laws of their own. Arizona, Indiana and Montana passed new restrictions on medication abortion since the Biden-Harris administration lifted the ban on mailing the abortion pill. These restrictions are a common anti-abortion tactic that seek to limit abortion not by banning it outright, but instead by passing cumbersome requirements that limit access to abortion. Additionally, by requiring that medication abortion be administered on site with a physician, access to medication abortion becomes subject to TRAP laws, or targeted regulation of abortion providers. These laws go beyond what is needed to ensure patients' safety, such as specifying corridor width or the size of procedure rooms. As of April 29, 536 abortion restrictions have been passed since the start of 2021. GOP-controlled state legislatures are going at a speed that could make 2021 the worst year for abortion restrictions in decades. It seems the election of Biden, and the administration's attempts to protect reproductive rights, are encouraging a race to pass the most abortion restrictions in a legislative session.
If the FDA could keep the current guidelines on allowing the abortion pill to be mailed and prescribed through telemedicine, abortion access could be greatly expanded and protected. Current abortion providers face violent protest and, as previously mentioned, cumbersome TRAP laws. Additionally, as a result of those TRAP laws, abortion clinics are closing all over the country. As of 2017, 38 percent of women lived in a county without an abortion clinic. As of 2019, six states had only one abortion clinic for the entire state. Long travel is a huge issue for accessing abortion, particularly in state with waiting periods. People have to have the time and resources to both travel long distances and stay overnight in order to get an abortion.
Expanding access to medication abortion by lifting the restrictions on prescription through telemedicine and sending the abortion pill through the mail could potentially address these issues. Unfortunately, anti-choice advocates are well aware of this and will likely continue to pass state-level restrictions to block such expanded access. Such restrictive policies are reminiscent of Anthony Comstock's crusade to use the mail to ban obscenity and contraception in the late 19th century. As long as Louis DeJoy is still in charge of the USPS, we're likely to see a lot of Comstockian mail control.
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