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The FDA regulates some 20,000 drugs, but the abortion pill is the only one it requires to be picked up in person, according to the ACLU. Both the ACOG and the American Medical Association consider mifepristone, the first of the two pills, safe for the woman to administer at home. It causes tissue in the uterus to break down and separate from the uterus. This is followed one or two days later with the equally safe misoprostol, which makes the uterus contract and expel its contents. According to the Guttmacher Institute, a reproductive rights advocate organization, in 2017 about 39% of U.S. abortions were by pill.
In their brief, the attorneys argued:
“Patients who have been previously evaluated and counseled by a clinician at a prior in-person visit or telemedicine appointment are forced to travel to a health center during the pandemic just to be handed a pill and sign a form. And these patients, their doctors, and other essential workers are all needlessly exposed to greater risk of contracting COVID-19 for this ministerial function.”
“Accordingly, while the progress on vaccines and medical treatments for COVID-19 are cause for optimism and may advance the day that the Preliminary Injunction will no longer be warranted, the impact of these advances to date has not meaningfully altered the current health risks and obstacles to women seeking medication abortions. The Court therefore finds that these factors do not materially alter the likelihood of success on the merits or warrant a stay or dissolution of the injunction at the present time.”
Chuang noted, however, that the ruling is not “open ended,” and wrote that the preliminary injunction is “slated to end 30 days after the end of the public health emergency declared by the Secretary. With the positive news relating to vaccines, there is reason to hope that day will come soon.”
The COVID–19 pandemic has thus made many typical activities more difficult and dangerous. A trip to the doctor’s office is no exception. As a result, the Federal Government has urged healthcare providers and patients to take advantage of telemedicine. For example, the CDC has advised medical providers to use telemedicine “whenever possible” because it is“ the best way to protect patients and staff from COVID–19.”4 The CDC has likewise informed patients that they should use telemedicine “[t]o reduce the risk of COVID–19 and keep you and your family healthy.” As mentioned above, the FDA and HHS have waived many in-person drug distribution requirements because they could “put patients and others at risk for transmission of the coronavirus.” For instance, the FDA no longer requires patients to undergo in-person procedures, such as laboratory tests or MRIs, before being prescribed certain drugs. Similarly, HHS now permits physicians to use telemedicine, rather than in-person evaluations, before prescribing certain controlled substances, including opioids. The Government has thus recognized that in-person healthcare during the COVID–19 pandemic poses a significant risk to patients’ health, and it has acted to help patients “‘access healthcare they need from their home, without worrying about putting themselves or others at risk during the COVID–19 outbreak.’” Yet the Government has refused to extend that same grace to women seeking medication abortion. […]
What rejoinder does the Government have to the possibility that refusing to suspend the FDA’s in-person requirements for mifepristone during the COVID–19 pandemic will cause some women to miss the 10-week window [in which medication abortion is legal] altogether? No cause for concern, the Government assures this Court, because even if the FDA’s in-person requirements cause women to lose the opportunity for a medication abortion, they can still seek out a surgical abortion. What a callous response.
Callous indeed. But when it comes to reproductive rights, the nation has a long history of callousness. Although the Court focused, of course, on the narrow matter before it, the real issue isn’t about whether abortion by pill without an in-person visit should be allowed during a pandemic but whether it should be allowed in “normal” times. The AMA thinks so. ACOG thinks so. Two decades of scientific evidence regarding use of abortion medication in more than 60 countries demonstrates its safety. What controls may have made sense 20 years ago when abortion by pill was introduced make no medical sense now. But, obviously, these mesh with the goals of the forced birthers determined to control women’s bodies and their sexuality. Those ideologues now have a Supreme Court majority that agrees with them.
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