Federal Judge Clears Way for Telemedicine Abortions During Pandemic

July 14, 2020 - A federal judge has given healthcare providers leeway to conduct telemedicine abortions during the coronavirus pandemic, ruling that an in-person consult won’t be needed prior to a telehealth visit while the country is in a national emergency.

U.S. District Judge Theodore Chuang’s 80-page ruling, issued Monday in Maryland, enables providers to prescribe mifepristone and misoprostal, two drugs used in medication abortions, through a virtual care platform during the emergency. He wrote that the in-person requirement poses a challenge for women facing barriers to healthcare access, particularly at a time when COVID-19 is restricting in-person care to emergencies.

“In-Person requirements, combined with the Covid-19 pandemic, place a substantial obstacle in the path of women seeking a medication abortion and that may delay or preclude a medication abortion and thus may necessitate a more invasive procedure,” he wrote. “Particularly in light of the limited timeframe during which a medication abortion or any abortion must occur, such infringement on the right to an abortion would constitute irreparable harm.”

“Although the need to counsel patients is an important interest, the evidence in the record supports the conclusion that with personal counseling now occurring through telemedicine, the requirement is not actually necessary to meet this interest,” he added.

Chuang granted a preliminary injunction to rules overseen by the US Department of Health and Human Services and the US Food & Drug Administration. Those rules were challenged in a lawsuit filed by the American Civil Liberties Union on behalf of several groups, including the American College of Obstetricians and Gynecologists, the New York State Academy of Family Physicians and the Sistersong Women of Color Reproductive Justice Collective.

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The lawsuit argued that while many other actions have been taken during the COVID-19 emergency to improve access to healthcare through telehealth, the FDA hadn’t taken any action with regard to telemedicine abortions.

“Today’s decision means that the Trump administration can no longer force patients to incur unnecessary COVID-19 risks as the price of getting abortion care.” Julia Kaye, staff attorney for the ACLU’s Reproductive Freedom Project, said in a press release. “Like so many of the administration’s actions, its refusal to suspend this irrational restriction during the pandemic — despite urgent requests from the nation’s leading medical authorities — was particularly dangerous for people of color and low-income communities, who are disproportionately suffering severe harm from COVID-19. We look forward to a day when federal reproductive health care policy is grounded in science, not animus, and this medically baseless requirement is lifted once and for all.”

Several states had asked to intervene in the lawsuit last month, saying it could affect how they enforce abortion laws, but Chuang turned them aside, saying the federal case would not affect how states regulate abortions above and beyond federal guidelines.

According to the lawsuit, more than 4 million women in the country have used mifepristone and misoprostol in medication abortions, accounting for 39 percent of all abortions in 2017.

The suit is one of several fights over telemedicine abortions.

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Planned Parenthood is embroiled in a battle in several states where lawmakers have sought to block abortions, including those conducted via telemedicine. Those lawmakers have argued that abortions aren’t considered necessary medical services and shouldn’t be allowed while the nation is focused on fighting the pandemic.

In April, Senators Elizabeth Warren (D-MA), Patty Murray (D-WA) and Tammy Baldwin (D-WI) jumped into the fray with a letter to the US Food and Drug Administration Commissioner Stephen Hahn, MD. The lawmakers are urging Hahn to relax restrictions on the use of Mifepristone, one of two drugs used in medication abortions, which can be conducted via telehealth.

The drug was approved for use in 2000, but shortly afterward was placed on the FDA’s Risk Evaluations and Mitigation Strategies (REMS) protocol, which requires that drugs determined to be risky be dispensed in a healthcare setting under the direct supervision of a certified care provider, and that patients be advised of the drug’s dangers.

Anti-abortion activists have also seized on the FDA’s REMS protocol in efforts to ban telemedicine abortions. In January, Ohio State Senator Stephen A. Huffman introduced a bill that aims to prevent the use of Mifepristone because of its supposed dangers. A bill in Pennsylvania and three filed in Congress are seeking the same goal.

“This legislation is vital for patient safety,” Huffman said in a statement distributed to local news outlets. “While it’s too late for the unborn baby, who will undoubtedly lose her life, physicians should never take this procedure so lightly as to fail to even be present when administering a drug that is known to have such serious side effects. It is a doctor’s duty to ensure that patients are not exposed to greater risk by recklessly dispensing drugs that are known to have life-threatening consequences.”

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Senators Warren, Murry and Baldwin see things differently.

“Significant scientific evidence, research, and clinical experience has affirmed that medication abortion is safe and highly effective,” they wrote. “Since 2000, over four million people in the United States have used mifepristone, and the adverse events reporting rate has been extremely low.”

“The medical community resoundingly agrees that any restrictions placed on the prescription and distribution of mifepristone are medically unnecessary,” they added, citing opinions from former FDA Commissioner Jane E. Emery and researchers at the University of California at San Francisco.