‘Cruel’: Supreme Court could send once-in-a-lifetime abortion deserts like Hawaii back in time
TShe treated a patient who wanted to become pregnant, but decided to have an abortion rather than have a child with her abusive partner. They treated patients who had lost their homes in the 2023 Maui fires, found themselves homeless, pregnant and seeking abortions. They treated patients who became pregnant after someone tampered with their birth control, and patients who could not afford to take time off work to have an abortion.
Colleen Bass and Sharon Offley, two certified midwives from Hawaii, were able to do this because the Food and Drug Administration (FDA) decided over the past decade to expand the availability of a general abortion pill.
Bass and Offley run a full-service women’s clinic on the small Hawaiian island of Kauai. Adding abortion services in 2021, as FDA rules around the pill evolved, was “a no-brainer,” Offley said.
“It felt like a moral obligation,” she said. “As our community became aware of our services, we became aware that there was a much greater demand and need for abortion services than we had previously known.”
But now the U.S. Supreme Court, nearly 5,000 miles away from Bass and Offley’s idyllic practice, a block from the Pacific Ocean, could jeopardize the future of their work.
On Tuesday, the court will hear arguments in a case involving mifepristone, one of two drugs commonly used in medication abortion in the US. It is the first major abortion case since that time to return to the country’s highest court A 6-3 conservative majority decided to overturn Roe v Wade in 2022, and its outcome could severely limit the availability of abortion drugs – a regimen that now accounts for 63% of all abortions in the US, according to data released this week by the Guttmacher Institute.
The right-wing anti-abortion groups that brought the case have argued that the FDA exceeded its authority when it first approved mifepristone for use in abortions in 2000. but the Supreme Court will focus on subsequent actions, taken by the FDA in 2016 and 2021, that significantly expanded access to the drug.
These measures allowed healthcare providers other than doctors to prescribe mifepristone. They also relaxed restrictions that had forced patients to collect mifepristone in person from facilities that had to meet strict certification requirements. Today, patients can receive mifepristone via telemedicine and also pick it up from their daily pharmacies.
If the Supreme Court reverses these measures, many will People will probably have to make a lot more effort to terminate their pregnancies. The availability of abortion in the US would plummet, abortion providers and their supporters told the Guardian – even in states where abortion remains legal, such as Hawaii.
“If the Supreme Court overrules the FDA and reinstates in-person dispensing requirements, there is no doubt that some prescribers currently offering this essential medicine to their patients will no longer be able to do so,” said Julia Kaye, senior staffer. attorney with the ACLU’s Reproductive Freedom Project, who co-authored an amicus brief in the case. “For some patients – particularly low-income patients, people of color, people living in rural areas, and women with abusive partners – losing a telehealth option for mifepristone would mean a complete loss of access.”
Providers in Hawaii already know the consequences of these restrictions because they have experienced them.
Hawaii is a reliably Democratic state whose lawmakers have built strong abortion protections at the state level. But just because abortion is legal doesn’t mean it’s accessible—and in reality, much of watery Hawaii was an abortion desert even before Roe’s death. Of the eight major islands that make up the Hawaiian archipelago, five had no abortion providers in 2021. Patients often had little choice but to take an often expensive flight or boat trip to the islands of Oahu, Hawaii Island or Maui for the duration of their treatment. procedure.
Dr. Graham Chelius, a primary care physician on Kauai, sued the U.S. government in 2017, arguing that the FDA should relax its rules around mifepristone, which at the time required a laborious certification process to dispense the drug. Those rules meant that Chelius’ patients on Kauai couldn’t get medication abortions — despite the fact that the drug was found to be safer than Viagra.
In court documents, Chelius described his patients’ struggle to travel from Kauai and surrounding smaller islands — including an island that has no paved roads or cell phone service, let alone health care providers — to Oahu, which is about 100 miles from Kauai . A woman, who already had one child and was struggling with an addiction, arrived at Chelius’ office to have an abortion. Because Chelius was not allowed to give her abortion pills, she had to travel to Oahu. The difficulty of getting there delayed the woman’s abortion by six weeks.
Medicinal abortions are usually performed in the first trimester of pregnancy. Instead of taking a few pills, the delay meant the woman had to undergo a surgical abortion.
“It also required her to bear the costs of staying on Oahu — in a hotel, away from her home and her family — overnight,” Chelius wrote in court documents. “This was completely unaffordable for her.”
Other patients were unable to complete the journey.
“We had cases where women continued pregnancies against their will, despite the extraordinary measures we took at the time to allow people to travel to Oahu to access women’s health care,” Chelius said in an interview.
Due to the complex nature of the case, staggering outcomes are possible. The court could overturn rules that allowed abortion via telehealth. It could reduce the number of allowed providers prescribe mifepristone. Retail pharmacies, such as CVS and Walgreens, which recently began dispensing the pill, could lose their ability to stock the pill.
The anti-abortion activists who filed the lawsuit against the FDA have argued in court papers that in-person visits are necessary to properly assess the age of a pregnancy and to diagnose ectopic pregnancies, or doomed pregnancies that cannot be treated by abortion. They say the FDA has stripped key safeguards over the past decade without the data to back up their decisions.
But more than 100 studies of mifepristone, conducted in multiple countries, have done just that all concluded that the drug can be safely used to terminate a pregnancy. The World Health Organization has done that drawn up a protocol for people to use the drug to “self-manage” their own abortions, without a doctor’s supervision. And of the more than 6,000 telemedicine abortions performed in the United States between 2021 and 2022, less than 1% reported serious side effects, according to a study. study published last month.
“This will have a very profound impact everywhere and likely a disproportionate impact on our island because it is necessary for virtually everyone seeking an abortion to get on a plane and fly,” Offley said. “Requesting an abortion for any reason – unwanted pregnancy, rape, incest, fetal anomaly. There would be no distinction. That service would disappear.”
TThe FDA decided in 2021, amid the coronavirus pandemic, to allow providers to offer abortions via telemedicine. That change became permanent in 2023. The decision created a new type of provider: the fully virtual abortion clinic. Such clinics serve women across the country, helping offset the impact of state abortion bans, which effectively closed all brick-and-mortar clinics in more than a dozen red states.
In September 2023, providers performed nearly 14,000 abortions via telehealth – 16% of all abortions in the country. Some of these abortions were provided legally, even to people living in the 16 states that have near-total abortion bans, under “shield laws.” In a handful of states, these statutes essentially require states to protect providers who and sending pills to people in states with restrictions.
Virtual clinics can be a crucial outlet for physical clinics often fully booked weeks in advance patients fleeing states with abortion bans. “The most important thing was time,” said a 32-year-old telehealth abortion patient from Oregon researchers told in a 2023 study of telemedicine abortions. “(Clinics were) fully booked for weeks, and I didn’t want to wait weeks.” Another patient, also a 21 year old from Oregon, added: “I couldn’t afford a surgical or medical abortion from the clinic. (Telehealth) is half the price of abortions where I live.”
“More than half of our patients get their medications delivered to their homes within 48 hours of using our website,” says Dr. Jamie Phifer, a family physician and medical director of Abortion on Demand, a virtual clinic that ships abortion pills to more than a dozen states where abortion is legal. “The time between knowing you want an abortion and getting an abortion – that can be torture for people.”
Phifer, like many representatives of other virtual clinics interviewed by the Guardian, wasn’t sure what they would do if the Supreme Court moved to restrict access to mifepristone. One virtual clinic — Lilith Care, which serves Hawaii, Rhode Island and Massachusetts — would likely close altogether, the nurse-midwife behind the service said.
Typically, medication abortions in the US involve doses of both mifepristone and a second drug, misoprostol. Depending on the judge’s final ruling, Abortion on Demand could switch to offering abortions consisting only of misoprostol. These abortions are safe and effective, but less effective than abortions performed with a combination of mifepristone and misoprostol. They can also be more painful.
“I think it’s honestly cruel to women to know that a safe, effective method of mifepristone and misoprostol has been around for over 23 years,” Phifer said. “And now you’re forcing them into a regimen that only contains misoprostol, which consists of three doses of a drug that makes you feel absolutely terrible and results in a much longer process.”
Bass and Offley also debated the move to offering misoprostol-only abortions, a move they unanimously called “ridiculous.”
“It seems so crazy that we’re even facing this,” Bass said.