This article is a student op-ed piece from Professor Kim Wehle’s spring 2020 course “Advanced Constitutional Law: Democracy at Risk.” The Legislation and Policy Brief allowed the students to publish their writing on the blog if they wished. The blog pieces were edited by the Legislation and Policy Brief for grammatical and technical errors only, and they appear as they were written by the authors in April of 2020.
Student Author: Jasmine Yunus
Abortion rights have long been under attack and the ongoing global pandemic of COVID-19 has not slowed that down. COVID-19 has had a devastating impact on the health care system, education, employment, and every other facet of our society, both nationally and globally. When it comes to abortion access, the pandemic has had a uniquely significant impact.
In fact, the anti-choice movement has capitalized on the recent chaos of the coronavirus to further suppress and restrict reproductive rights. These efforts are spearheaded by anti-choice actors on the state level with a clear intention of rendering abortion inaccessible. In a time of crisis, it is vital to ensure that constitutionally protected rights like abortion are not shredded under the guise of necessity.
While Roe v. Wade and its progeny remains the law of the land in securing the constitutional right to an abortion, it’s widely acknowledged that, for many Americans, this right was hollow due to increasing and expansive barriers to accessing abortion. These barriers range from gestational-week bans, to “reasons-based” bans, to mandatory waiting periods, to restrictions on insurance coverage, to restrictions on abortion methods, to mandatory biased-counseling, to TRAP (targeted regulations on abortion providers) laws aimed at impeding abortion providers and closing clinics.
These restrictions become even more insurmountable for women when coupled with navigating the impact of COVID-19. For example, in the new reality of this pandemic, an individual seeking an abortion in one of the 27 states that require medically unnecessary mandatory waiting periods would be forced to make multiple trips (in some states travelling hundreds of miles) to their abortion provider, increasing their risk to potential exposure or spreading the coronavirus.
In the wake of COVID-19, Governors, state Attorneys General, and health departments began to issue various Executive Orders and guidance. One aspect of this guidance was a restriction on elective procedures under the justification of preserving PPE (personal protective equipment) and other medical resources needed to combat the virus. Certain states with proven records reflecting their hostility to reproductive rights utilized this opportunity to designate surgical abortion as an elective procedure, either explicitly or through vague language facilitating that interpretation. In doing this, these states effectively suspended the constitutional right to abortion by rendering surgical abortion inaccessible to individuals in those states. These states have pursued these efforts despite the advice and expertise from medical groups reiterating abortion services as an “essential and critical component of comprehensive healthcare.” In light of these barriers and the unique time-sensitive nature of abortion, access to medication abortion (a non-surgical pharmaceutical abortion method involving two pills, mifepristone and misopristol) is more crucial than ever.
Medication abortion is restricted at various levels state-to-state and is also subject to additional regulations under the FDA. In eighteen states, the clinician must be physically present for the use of medication abortion.  As a result of this restriction, individuals and healthcare providers in those states cannot utilize methods such as telemedicine to prescribe and provide medication abortion. Additionally, the REMS (Risk Evaluation Mitigation Strategies) imposed by the FDA mandate the first component of medication abortion be dispensed at a medical clinic or office and cannot be dispensed directly by a pharmacy. These requirements are widely acknowledged to be medically-unnecessary as the risk of major complications from medication abortion is 0.05%. Over 60 countries have approved medication abortion, many of which do not impose such restricting requirements.
As the nation continues to be impacted by this pandemic, the obstacles presented by efforts to stop the spread of the virus has made telemedicine increasingly relied upon for individuals to receive all types of medical care. Telemedicine ensures individuals are able to obtain medical care without unnecessarily forcing them to risk exposure to the virus by having to physically go into clinics or hospitals to meet with their health care provider. Pharmacies are heavily shifting towards dispensing prescriptions through the mail, allowing individuals to stay safely at home and have their medications shipped to them.
Yet under the current state restrictions and the restrictions imposed by the FDA, medication abortion is effectively siloed from the solutions being employed for every other facet of medical care during COVID-19. In all fifty states, individuals must have the first pill of medication abortion dispensed by a medical office, clinic or hospital – rather than dispensed for pick up at their pharmacy or mailed to them by their pharmacy. Individuals in eighteen states cannot utilize telehealth services to for dispensing of medication abortion. These individuals–many already facing a ban on accessing surgical abortion in their state during COVID-19–now deal with navigating these obstacles to medication abortion.
 Roe v. Wade, 410 U.S. 113 (1973); Planned Parenthood v. Casey, 505 U.S. 833 (1992); Stenberg v. Carhart, 530 U.S. 914 (2000); Whole Woman’s Health v. Hellerstedt, 579 U.S. (2016).
 Elizabeth Nash, State Policy Trends of 2019: A Wave of Abortion Bans, But Some States Are Fighting Back, Guttmacher Institute https://www.guttmacher.org/article/2019/12/state-policy-trends-2019-wave-abortion-bans-some-states-are-fighting-back.
 Counseling and Waiting Periods for Abortion, Guttmacher Institute https://www.guttmacher.org/state-policy/explore/counseling-and-waiting-periods-abortion.
 Dennis Carter, Abortion Access During COVID-19, State by State, Rewire.News https://rewire.news/article/2020/04/14/abortion-access-covid-states/.
 American College of Obstetricians and Gynecologists et. all, Joint Statement on Abortion Access During the COVID-19 Outbreak, ACOG https://www.acog.org/news/news-releases/2020/03/joint-statement-on-abortion-access-during-the-covid-19-outbreak.
 Medication Abortion, Kaiser Family Foundation https://www.kff.org/womens-health-policy/fact-sheet/medication-abortion/.
 Medication Abortion, Guttmacher Institute https://www.guttmacher.org/state-policy/explore/medication-abortion.
 Mifeprex (mifepristone) Information, United States Food and Drug Administration https://www.fda.gov/drugs/postmarket-drug-safety-information-patients-and-providers/mifeprex-mifepristone-information.
 Medication Abortion, Kaiser Family Foundation https://www.kff.org/womens-health-policy/fact-sheet/medication-abortion/#footnote-258289-1.
 Law and Policy Guide: Medical Abortion, The Center for Reproductive Rights https://reproductiverights.org/law-and-policy-guide-medical-abortion.