(Reuters) – U.S. telehealth and in-person abortion providers scrambled on Thursday to keep medication abortion services available after a federal appeals court ruled that the abortion pill mifepristone could be distributed amid ongoing litigation but with significant restrictions.
The New Orleans-based 5th U.S. Circuit Court of Appeals on Wednesday upheld a lower court order that confined use of the pill to the first seven weeks of pregnancy and required in-person doctor visits to obtain it.
Mifepristone is used with another drug called misoprostol to perform medication abortion, which accounts for more than half of U.S. abortions. Many other countries already permit misoprostol-only abortions.
Several U.S. telehealth practices said they had already switched to providing misoprostol-only abortion regimens, or were prepared to do so if necessary after midnight on Saturday when the new restrictions on the pill are due to take effect.
“We have made the switch to the safe and effective misoprostol-only regimen so as not to interrupt service during this uncertain time,” said Julie Amaon, medical director of Just The Pill, a company that delivers abortion medication in Wyoming, Montana, Colorado and Minnesota.
Jayaram Brindala, founder of Abortion Telemedicine, said the provider would “no longer be able to send the mifepristone medication by mail anywhere.” Brindala added the company would still send the misoprostol-only regimen to states that allow it.
The Justice Department said on Thursday it would ask the Supreme Court to intervene to stop the new restrictions on mifepristone as President Joe Biden’s administration moves to defend access to the drug.
Some telehealth practices that provide abortion medication said they were waiting to see what happens next in court before announcing any changes in policy.
“We cannot say with certainty what our services will look like next week,” said Christie Pitney, CEO of Forward Midwifery, a Washington D.C. telehealth practice.
In-person clinics were also grappling with how to respond to the ruling.
The University of California San Francisco Center for Pregnancy Options was considering whether to continue to offer mifepristone for abortions beyond seven weeks as a so-called “off-label” application, said Dr. Josie Urbina, an obstetrician/gynocologist specializing in complex pregnancy.
The clinic uses mifepristone up to 12 weeks gestation not only to terminate pregnancy, but also for miscarriage care and in cases where a fetus has died.
The clinic has been purchasing extra supplies of mifepristone in recent months, in anticipation of possible restrictions, she said.
AVENUES TO ACCESS REMAIN
The court battle over mifepristone has drawn widespread attention as the most consequential abortion case since the U.S. Supreme Court last year overturned the 1973 Roe v. Wade ruling that established federal abortion rights.
The appeals court ruling on Wednesday effectively reinstated restrictions on the pill’s distribution that had been lifted since 2016, including limiting its use to the first seven weeks of pregnancy, down from the current 10, and requiring in-person doctor visits to prescribe and dispense the drug.
Before the FDA removed the in-person requirement in 2016, some providers offered a semi-telehealth model, which would theoretically still be possible now in states that have not banned abortion outright, said Greer Donley, an associate professor at the University of Pittsburgh Law School.
Under that model, patients had virtual appointments with providers, but picked up their pills in person at satellite offices such as Planned Parenthood affiliates, according to Donley.
Another way to circumvent the appeals court ruling would be for the FDA to declare that drug companies and doctors won’t face legal risks for making or prescribing mifepristone, according to drug law experts.
“Practically speaking, this FDA’s not going to go after anyone, but unless they say that with a clear voice and provide explicit guidance on this issue, there’s going to be a ton of people who aren’t just willing to bet on that,” said Donley.
Unless the FDA expressly outlaws the drug, the online pharmacy Honeybee Health will continue to offer it – no matter what happens in court, said Jessica Nouhavandi, its president and co-founder.
“We are taking the stance that mifepristone is still an FDA-approved medication until the FDA notifies us otherwise,” she said.
California-based telehealth abortion clinic Choix also will continue to provide the mifepristone and misoprostol regimen for patients seeking abortions now – or advance pills for future use, CEO Cindy Adam said.
Overseas provider Aid Access, an Austria-based service that ships abortion medication to U.S. patients, said the appellate ruling would not affect its ability to send both mifepristone and misoprostol to the U.S.
(Reporting by Julia Harte and Sharon Bernstein, Additional reporting by Gabriella Borter in Washington and Bhanvi Satija in Bengaluru;Editing by Colleen Jenkins, Aurora Ellis and Diane Craft)
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