Following a U.S. Supreme Court opinion earlier this month allowing a Texas abortion ban to go into effect, many people across the country are considering what their future options may be for safe, legal abortions.
It’s the most restrictive abortion law in the U.S. to go into effect, banning abortions as early as six weeks with no exceptions for incest or rape and allowing private individuals to sue anyone who they believe is providing abortions or assisting someone in accessing an abortion.
During the COVID-19 pandemic, one option that has increased access to abortion care, especially in rural areas where clinics are more rare, is telemedicine abortion. Though access has increased, there isn’t current U.S. data about how many abortions have been performed through telemedicine, per the Guttmacher Institute, an abortion rights think tank.
Patients get online access to medication abortion using mifespristone and misoprostol, which can be taken during the first 10 weeks of gestation, by allowing health care providers to prescribe or supervise the use of the pills through video or telephone meetings.
But the future of telemedicine abortion in Michigan and across the country is murky.
Many experts expect the current Supreme Court, which has a 6-3 conservative majority, to eventually overturn the landmark 1973 Roe v. Wade decision that granted Americans the constitutional right to access a safe and legal abortion.
Concern about the future of reproductive rights kicked into high gear in May, when the Supreme Court agreed to hear arguments on a Mississippi law banning abortions after 15 weeks, Dobbs v. Jackson Women’s Health Organization. The court’s decision not to issue a stay in the case involving Texas’ new law, Senate Bill 8, was yet another ominous sign that SCOTUS will overturn Roe v. Wade.
If that happens, Michigan would revert back to a 1931 law banning abortion that has been moot since the Roe decision. That law could potentially felonize people for performing an abortion at any gestational period, unless it is to save the life of the pregnant person.
There is some debate on whether that law will survive the test of time.
Lori Carpentier, former CEO of Planned Parenthood Advocates of Michigan, previously told the Advance she expects the 1931 law will quickly be challenged in court because the “language is so outdated.” However, Genevieve Marnon, Right to Life of Michigan legislative director, says she believes it doesn’t “need to be changed whatsoever.”
In the meantime, Democratic Gov. Gretchen Whitmer has urged the GOP-led Legislature to repeal the 1931 law, calling it “arcane.” However, the Legislature has taken up several anti-abortion measures this term. And Senate Majority Leader Mike Shirkey (R-Clarklake) responded last week that Senate Republicans “will not waiver from this fundamental duty to protect the sanctity of life.”
So what will happen to telemedicine abortion if Roe is reversed? That also depends on state laws.
“To practice medicine in the state, you need to follow the rules of that state,” said Laurie Sobel, associate director of women’s health policy at the Washington, D.C.-based Kaiser Family Foundation. “This is an open-ended question that a lot of people are looking at right now. What are the rules around mailing medication across state lines?”
Michigan currently allows for telemedicine abortions, but the state requires patients to have an ultrasound before providing the abortion.
“If everyone trying to get an abortion in Michigan has to have an ultrasound first, then it becomes impossible for someone out of state to mail medication abortion and comply with Michigan abortion law,” Sobel said.
That’s why digital abortion clinics, like Hey Jane or Abortion on Demand, aren’t available to Michiganders. These companies offer online appointments and mail the medication to the patient’s home. But they can’t offer ultrasounds to patients.
Planned Parenthood of Michigan, the largest resource in the state for pregnant people looking to get an abortion, has a different form of telemedicine abortion. Spokesperson Angela Vasquez-Giroux said they offer “medication abortion augmented by telemedicine.”
According to the Kaiser Family Foundation, Planned Parenthood patients go to a clinic for an intake appointment and ultrasound and the provider is remote. Then if the patient is eligible for abortion medication, the patient receives the pills in the clinic.
The future in Michigan
If Roe v. Wade is overturned, telemedicine abortions in Michigan may be banned completely.
Sen. Erika Geiss (D-Taylor), who introduced Senate Bill 70 to terminate the 1931 abortion ban, said the language of the state’s 90-year-old law is outdated and too broad, which could leave room for interpretation by the GOP-led Legislature.
“Even though [telemedicine abortion] wasn’t a thing in the early 20th century, [the 1931 law] would also include that,” said Geiss during a press conference last week.
Marnon said that it’s the anti-abortion group’s understanding that the 1931 abortion ban would also ban telemedicine abortions in the state.
“Obviously, we would love to see telemedicine abortions banned and there’s legislation that we are working on that would do just that. Our governor has also stated that she would veto any restrictions on abortion, so I don’t think that law will get through until we replace Gov. Whitmer,” Marnon said.
Another option would be to do a citizen-led petition banning telemedicine abortion, a technique Right to Life has used for abortion restrictions in the past. Under Michigan law, the Legislature can adopt petitions that get the required number of signatures before voters have their say in an election. And governors have no power to veto.
The Legislature has previously attempted to ban telemedicine abortions.
In 2012, the GOP-led Legislature barred telemedicine for abortions as part of an anti-abortion package. GOP former Gov. Rick Snyder signed it after a Lame Duck session, but the bill had a sunset provision and was lifted on Dec. 31, 2018.
In the 2018 Lame Duck Session, Republicans attempted to permanently ban telemedicine abortions. But as one of his final acts as governor, Snyder vetoed Senate Bill 1198, which was criticized by Right to Life.
Snyder said in his veto letter: “On a daily basis, our health care professionals thoughtfully and deliberately determine when any health care delivery method is safe, including telemedicine for other areas of care. Telemedicine for medical abortion should not be any different.”
How COVID-19 made abortions more accessible in the U.S.
Many health clinics have expanded online options during the pandemic because of safety concerns around spreading COVID-19.
In July 2020, a federal court temporarily suspended a Food and Drug Administration (FDA) requirement only allowing for mifepristone to be distributed in person.
The former President Donald Trump administration repealed the decision and the U.S. The Supreme Court reinstated the FDA restriction in January.
However, new President Joe Biden lifted the in-person requirement in April for the duration of the COVID-19 pandemic. And in early May, the Biden administration announced the FDA would review its restrictions on the abortion pill beyond the pandemic.
“So there’s an opening, but that opening will impact people differently in different states, at least for the time being, until there’s more clarity on whether this medication can be dispensed through the mail across state lines and how that intersects with state laws,” Sobel said.
States taking action against telemedicine abortion
Since the start of 2021, there have been 561 abortion restrictions introduced in 47 states, according to the Guttmacher Institute, and states are working on restricting access to telemedicine abortions.
Even though the FDA and the Biden administration have taken strides to make telemedicine abortions accessible, 19 states currently restrict it, according to the Kaiser Family Foundation.
Five states — Arizona, Arkansas, Louisiana, Indiana and West Virginia — have explicitly banned telemedicine for medication abortion.
The other 14 states, including North Dakota, South Dakota, Nebraska, Kansas, Oklahoma, Texas, Wisconsin, Missouri, Kentucky, Tennessee, Mississippi, Alabama, South Carolina and North Carolina, require the prescribing clinician to be physically present with the patient.
South Dakota Gov. Kristi Noem, a Republican, was the latest to take action, signing on Sept. 7 an executive directive ordering the state’s Department of Health to create rules prohibiting telemedicine abortions in the state. Noem, who is considered a 2024 presidential contender, is slated to speak at the Michigan Republican Leadership Conference on Mackinac Island later this month.
Her directive prohibits physicians not licensed in South Dakota from prescribing abortion-inducing chemicals to residents, criminalizes delivery of abortion medication through any means other than a clinic and prohibits abortion medication from being provided in schools or on state grounds.
Noem said the Biden administration is “working right now to make it easier” to access telemedicine abortion.
“That is not going to happen in South Dakota,” said Noem.
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