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Demand for telemedicine abortions increases but could face legal challenges post-Roe

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Interest in telemedicine abortion - whether measured by Google searches or calls to virtual clinics - has skyrocketed in the days following the U.S. Supreme Court's decision in Dobbs v. Jackson
Demand for telemedicine abortions increases but could face legal challenges post-Roe

Interest in telemedicine abortion – whether measured by Google searches or calls to virtual clinics – has skyrocketed in the days following the U.S. Supreme Court’s decision in Dobbs v. Jackson, which removed the constitutional protection for abortion and cleared the way for restrictions or bans to take effect in numerous states .

Searches for the term “online abortion” went from a search volume of one on Google Trends at 8 a.m. Friday, to 100 at 11 a.m. Those numbers are ratios of the search term’s popularity, indicating it went from nearly zero interest to peak interest in a few hours surrounding the decision.

As the demand for telemedicine abortions is expected to increase, both patients and providers are navigating an uneven legal landscape that will continue to shift as states test the waters of new bans.

“The dissent in the decision (Friday) acknowledges that basically there's going to be a whole host of legal issues,” said Aziza Ahmed, a law professor at the University of California, Irvine School of Law. “Issues of how people are managing medication abortion that will come up … as states try to essentially test prosecuting individuals.”

What is mifepristone, the abortion pill? What to know after the Supreme Court overturned Roe

What does overturning Roe mean? A breakdown of the Supreme Court's abortion ruling

What is telemedicine abortion? 

Telehealth, telemedicine, self-directed, online or virtual abortion are all terms referring to the ability to get the drug combo of mifepristone and misoprostol mailed to a patient to take at home in order to terminate a pregnancy by blocking a required hormone and inducing cramping.

The process typically involves a virtual consultation with a medical professional licensed to administer the drugs. The drugs are mailed to the patient, and there is a follow-up process for the patient to report that the abortion was successful or be referred for follow-up care. 

Medication abortions currently account for more than half of all abortions in the United States, but until the pandemic hit, patients had to receive the pills in person from a doctor. 

In April 2021, the FDA announced it would allow termination-inducing pills to be mailed to patients for the duration of the pandemic. Then in December, the agency made the rule permanent .

Even before the Dobbs decision removed the constitutional protection of abortion, at least 19 states restricted the use of telemedicine for pregnancy terminations.

Now, many of those same states have enacted partial or total bans on abortion, which hold online providers to the same rules as in-person clinics. 

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Providers in states that enacted bans scrambled over the weekend to cancel appointments and refer patients out of state.

In Ohio, Attorney General Dave Yost enacted a previously-passed "heartbeat bill" that bans abortions after a fetal heartbeat can be detected – typically around six weeks gestation. The move sent patients to Indiana, Pennsylvania and Illinois .

If patients can’t make a trip to Chicago, for example, they may turn to telemedicine if they are less than 12 weeks pregnant. Some providers cut off prescribing earlier than 12 weeks depending on the state laws where they operate.

Can you access a telemedicine abortion in a state where abortion is illegal? 

There are numerous online pharmacies and telemedicine providers in the U.S. and abroad that will ship the pills to states where abortion is illegal, according to Plan C , an information campaign that helps those who are pregnant access self-directed termination by mail. 

A pregnant person could also travel to a state where telemedicine abortion is legal, without having to travel the full distance to a physical clinic, according to the non-profit. 

For example, traveling just over the border into Colorado without having to go the full distance to Denver or another big city with in-person appointments would technically make it legal for health providers to prescribe medication in a state where abortion is legal. 

Traveling across state lines for telemedicine terminations will become more common along with traveling for in-person appointments, according to Kiki Freedman, CEO of Hey Jane, a virtual clinic that operates in California, Colorado, Illinois, New Mexico, New York and Washington.

“Neighboring states will be flooded with traveling patients seeking care,” she said. 

Ban blocked: Louisiana court blocks enforcement of state's trigger law outlawing abortion 

The Guttmacher Institute anticipates a 3,000% increase in the number of people whose nearest provider is in California. That number jumps to more than 8,600% in Illinois. 

Freedman said patients need to be in an abortion-friendly state that is served by their clinic for the entire treatment, which includes the consultation and the treatment itself even if that’s done via phone and mail.

“Traveling to a friend's place and mailing the medication there is a great way of getting care, if you’re able,” she said.

Plan C and other advocates of abortion access also provide information on mail forwarding as an option for those in states where abortion is illegal.

There are often additional costs to set up virtual mailboxes and forward mail to a home address, but Plan C notes it’s often less than the gas that would be needed to travel to another state. 

There are some restrictions, depending on the provider. Abortion on Demand, a telemedicine provider that serves 22 states, says they cannot ship to “P.O. boxes, UPS boxes, FedEx shipment centers, etc.”

Can you go to jail for a self-managed abortion? 

In most states, even if abortion has been outlawed, the patient may be unlikely to face prosecution for using the above-mentioned methods of accessing telemedicine abortion. 

Justice Brett Kavanaugh said in his concurring opinion that he believes people who travel to neighboring states to receive an abortion would be protected by the constitutional right to interstate travel.

Ohio Senate President Matt Huffman, R-Lima, told the USA TODAY Network Ohio Bureau that policing what Ohioans do in other states isn't likely to happen.

"If someone is going to go to New York to have an abortion, we’re not going to know that and we’re not going to be able to prevent that," Huffman said Friday. "People go to Colorado to smoke marijuana recreationally."

Employers paying for abortion: Companies paying for travel include Dick's Sporting Goods, Google, Disney

None of the states with current abortion bans includes language about prosecuting the person who seeks an abortion.

But Texas and Oklahoma have laws that allow private citizens to sue abortion providers or anyone who helps someone obtain an abortion, for up to $10,000.

Utah's trigger law that went into effect following the Dobbs decision makes performing an abortion a felony punishable by up to 15 years in prison and a $10,000 fine. PBS reported some lawmakers have acknowledged that a woman who self-administers an abortion, including through medication, could potentially face charges.

More states could enact similar laws or add to their laws in the future the prosecution of people who seek abortions now that the protections of Roe are gone.

“I think that uncertainty itself has a sort of silencing effect,” Ahmed said. “For example, a woman who might be afraid if she were to cross state lines might not do that … no one wants to be the test case.”

Plan C notes that since 2000, at least 60 people who have self-managed an abortion or have helped someone else are known to have been arrested or prosecuted 

But the site also says that a doctor cannot tell the difference between a self-managed abortion and a naturally-occurring miscarriage. 

“People who self-manage their abortions do not need to report to doctors that they have used abortion pills that they purchased online,” according to Plan C. “The symptoms after taking abortion pills are the same as a miscarriage. Because the medical treatment for an abortion with pills is no different than the medical treatment for a miscarriage, medical providers can safely and effectively care for you without needing to know your full medical history.”

What legal issues could providers of telemedicine abortion face? 

Telemedicine abortion providers say they follow all laws in the states they operate in and do their due diligence to determine if patients are accessing their services from states where it is legal.

“Trust is inherent in the work that we do,” said Freedman, with Hey Jane. “Patients share their location with us at onboarding, and we trust them to tell us where they are.”

Still, they don't rely exclusively on the honor system. Providers can use a variety of methods to determine what state the person is calling or video chatting from.

Abortion on Demand’s website says they do not allow people to connect to their appointments via virtual private networks, or VPNs , because that would allow the person to disguise their location.

Providers also ensure the mailing address they have is in the state they are licensed to operate in.

The legal landscape for providers will also shift as states enact new legislation and is tested in the courts, said Brian Marks, a lawyer and senior lecturer in economics and business and health policy at the University of New Haven.

“(The FDA’s rule on telemedicine abortion) was done in the context of the pandemic… so there are potential challenges that could come,” Marks said. “You could see people challenging the FDA's authority.”

Down the road, there could be liability exposure for telemedicine providers as well as employers who have announced they’ll support women traveling out of state to get an abortion.

“We're going to see litigation on the extraterritorial reach,” he said. “Can you travel and the extended reach of various state laws?”

Which states allow telemedicine abortion? 

You can search for your state on the Plan C website to find out which providers accept patients there.

The below states currently allow telemedicine abortion, according to Plan C, though individual providers are licensed only in certain states: 

Alaska 

California 

Colorado 

Connecticut 

Delaware 

Georgia - The Georgia Senate passed a bill that would require an in-person visit to receive abortion pills, but it has not been passed by the House. A ban on terminations after a heartbeat can be detected was passed and could go into effect in coming weeks. 

Hawaii 

Idaho – A ban, which has been challenged, could take effect 30 days from the Supreme Court’s ruling on Dobbs. 

Illinois 

Iowa - A previous bill to outlaw telemedicine terminations was struck down by the state Supreme Court. Iowa's Republican-controlled legislature could seek to ban abortions in the near future. 

Maine 

Maryland 

Massachusetts 

Michigan 

Minnesota 

Montana 

Nevada 

New Hampshire 

New Jersey 

New Mexico 

New York 

Oregon 

Pennsylvania 

Rhode Island 

Vermont 

Virginia 

Washington 

Washington, D.C. 

Wyoming

Does insurance cover mail-order abortion pills? 

Patients need to check with their insurance providers to find out whether telemedicine visits and any medications prescribed are covered.

Telemedicine abortion typically costs much less than surgical abortion, which can cost more than $700, according to Planned Parenthood.

Several telemedicine providers listed the price for consultation and pills at less than $300. 

Eleven states restrict the coverage of abortion by private insurance plans , often limiting coverage only to when the patient's life is in danger. Only six states require private insurance plans to cover abortion services.

If a provider doesn’t bill insurance, a patient could potentially still use an FSA or HSA medical plan to get reimbursed.

There are also many nonprofits that fund abortions and related expenses including travel.

Follow Katie Wedell on Twitter: @KatieWedell and Facebook: facebook.com/ByKatieWedell

This article originally appeared on USA TODAY: Demand for telemedicine abortions increases but could face legal challenges post-Roe 

 

 

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