The U.S. Supreme Court issued a temporary order Monday restoring nationwide access to widely-used abortion medication mifepristone.
A lawsuit before the court is seeking to ban availability of the drug by mail after telehealth appointments. It was brought by the state of Louisiana against the Food and Drug Administration. Louisiana argues that the FDA’s rules allowing telehealth medication abortion undermines the state's abortion ban.
To find out about how this litigation could affect women in Wisconsin and around the country, WUWM's Maayan Silver spoke with Professor Jenny Higgins, director of UW CORE – the Collaborative for Reproductive Equity at UW-Madison.
This interview has been edited for length and clarity.
Maayan Silver: How is mifepristone accessed in Wisconsin, where abortions are lawful up to 20 weeks post-fertilization?
Jenny Higgins: So there are two very distinct types of medication abortions. One is medication abortions available through brick-and-mortar clinics in our state. So, for example, at a Planned Parenthood clinic or at Care for All or Affiliated Medical Services in Milwaukee. And the other is pills shipped by mail through telehealth to people who want medication abortion pills. Now, Wisconsin law prohibits the use of telehealth for medication abortion care.
So, physicians in Wisconsin, for example, cannot have pills shipped to their patients by way of mail. Brick-and-mortar clinics in Wisconsin cannot offer telehealth care, mail-order care for abortion pills. However, there's a certain category of provider called “shield law providers,” and these shield laws protect clinicians in other states such as Massachusetts, who have licensing privileges, who take care of patients, who can then send medication abortion pills to Wisconsin patients, even though we have a telehealth ban here in our state.
So right now it's a loophole through which residents of our state and elsewhere are receiving pills, even though Wisconsin state law prohibits the use of telehealth and mail order of mifepristone and misoprostol (the primary alternative drug used for medication abortion, often taken alone or in combination with other drugs when mifepristone is unavailable or restricted.)
So right now, telehealth visits and then being prescribed an abortion medication is prohibited in Wisconsin. Would somebody be able to see a provider in-person and then get a pill mailed to them?
That’s not allowed in our state. So, we have in our state some of the most restrictive laws pertaining to medication abortion of any place in the United States. So, a patient in Wisconsin who wishes to receive care at brick-and-mortar clinics must drive to that clinic or get a ride to that clinic two different times, see the same physician each of those times, to receive pills to then have a medication abortion experience at home.
So, what could be done in one telehealth visit, in our state is mandated to happen only in-person and over two different visits, right? So this is a highly restricted service in our state. People can still access medication abortion in Wisconsin at brick-and-mortar clinics and many do. But they have to go through many more steps to get that care than they should based on evidence-based medicine.
So some people go around the formal healthcare system or the brick-and-mortar system in our state and order pills through these shield law providers and receive the pills by mail. And while we would very much like in Wisconsin for telehealth medication abortion to be allowable, we also know that lots and lots of evidence shows that telehealth medication abortion is very safe and very effective.
So I have no safety concerns for patients accessing medication abortion pills through shield law providers. But as a person who really honors evidence and medical best practice, I would much prefer if our state law allowed for telehealth abortion in our own clinics and with our own providers here in the state.
As we mentioned, in the country, nearly two-thirds of abortions are provided by medication abortion. Do you have numbers on Wisconsin in terms of how many patients are medication versus procedural?
Yeah, so abortion is a very common procedure. And so about one in four people of reproductive age with the capacity to get pregnant will have an abortion in their lifetime. And some of those will be medication abortions. And some of those will be what we call procedural abortions, that's an abortion that takes place in a facility.
So in Wisconsin, when we look only at abortions that happen in brick-and-mortar clinics, which is the overwhelming majority of care in our state, less than half are medication abortions. The latest Department of Health Services report suggests about 45% of abortions offered at brick-and-mortar facilities in our state are medication abortion. One of the reasons we think that is lower than national averages is because of the number of abortion restrictions around medication [in Wisconsin].
I'm wondering how many of those medication abortion patients are going through in-person appointments and getting medication through those rules in Wisconsin, and how many are going through shield laws and getting medication mailed to them from out of state?
When we look at just the group of people who get their care in brick-and-mortar facilities, about 45% choose medication abortion and about 55% choose procedural. So that's just the group of people going to clinics in our state for care, right? Now, when we look at the broader group of all the abortions provided potentially in Wisconsin, both at brick and border facilities and by the shield law providers, the number expands.
We know that about two-thirds of all abortions in Wisconsin were provided at brick-and-mortar facilities. But numbers from shield law providers suggest that about a third of abortions provided were provided by way of shield law provider. So these again are mail-order pills that Wisconsinites order and receive.
Now, just because it's the number of orders doesn't mean it's a number of abortions, right? Just because someone orders a pill doesn't means that we know whether they had an abortion or not. However, we might assume that a lot of these orders are resulting in abortions. So it's a significant amount of Wisconsinites who are enabled to access abortion care by way of laws, but still the majority take place in brick-and-mortar facilities.
What kind of impact do you think a ruling limiting mifepristone access in the country via mail order and telehealth would have in Wisconsin?
Well, that decision would not impact providers in Wisconsin because they have long been prohibited from using mail order and telehealth. It would impact people living in parts of Wisconsin who want to avail themselves of mail-order medication or abortion pills by way of shield law providers.
So our numbers suggest that many hundred Wisconsinites each month place orders for medications through shield law providers and those would all be people who would be standing to lose that access if mifepristone was no longer allowed to be sent through the mail by way of these shield law providers.
The Supreme Court issued an order that would essentially restore nationwide access to mifepristone while the case is pending, at least through May 11, but it doesn't indicate how the full Supreme Court would rule on the merits of the case or specifically whether or not mifepristone would be available permanently. What are you watching for?
Yeah, we have one week of a stay right now. So essentially, things are on pause for a week. And during that time, mifepristone can still be provided through the mail. At the end of that week, we don't know what will happen, whether the Supreme Court will take up the case, whether it will revert to a lower court ruling. So there are so many unknowns.
What I am concerned about as someone who spends a lot of time thinking about patient-centered, evidence-based care is the confusion that this sows among people in our state, especially people who are pregnant and maybe considering abortion. So there's a lot confusion over what's legal, what's not legal, what's available, what not available, and those can be things that really diminish people's access and ability to obtain the care that they want.
How would this change access on the ground?
It's a great question. We know that having lots of different modalities to care is a really important way of improving access and removing one of those modalities would diminish access, right? Will some of those people still be able to find ways of obtaining abortion successfully? Very likely, yes, some of them will, but very likely some of them will no longer have access and will be forced to remain pregnant against their will.
These are people who live far away from our state's few abortion clinics. These are people who don't have transportation, who can't take time off of work, who might be in abusive relationships and whose partners won't let them out of their sight for two separate visits to say, Madison and Milwaukee. So we are pretty certain that if shield law providers were no longer able to provide care in Wisconsin, fewer Wisconsinites would be able to access abortion care.
