Unbottling the pill

Pro-abortion groups rejoiced last summer when a federal judge blocked the Food and Drug Administration’s in-person dispensing requirement for the abortion pill during the pandemic. The organization Hey Jane, which had spent the coronavirus pandemic collecting signatures for a petition to revoke the FDA rules, celebrated the decision on Instagram and announced plans to become the first digital abortion facility in the United States.

Other providers beat them to that goal. The staff at Hey Jane started distributing abortion pills by mail to patients in New York and Washington on Dec. 14. By then, other startups like Just the Pill (based in Minnesota) and Choix (based in California) had already launched. Even existing abortion facilities and online pharmacies joined the market.

But a Supreme Court ruling the week before President Joe Biden’s inauguration (the court’s first abortion-related case since Justice Amy Coney Barrett joined) lifted the injunction on the FDA rules, effectively forcing these programs to a halt. Some complied, but others continued.

All eyes turned to the incoming Biden administration, which is likely to scrap for good the in-person distribution requirements for mifepristone. “Some of us hoped it would be really quick,” said Tara Shochet, who works for the pro-abortion group Gynuity Health Projects. But the first days of the administration have come and gone without any FDA action.

Katie Glenn, government affairs counsel at Americans United for Life, said it’s possible for the new FDA under Biden to remove the restrictions immediately. But sidestepping the complete reevaluation process for an FDA drug would be unprecedented and look overtly political. She said that’s why the administration will probably take the slower path and spend a couple of months reevaluating mifepristone and its current safety measures.

For now, the department is waiting for Biden to nominate a commissioner. Glenn said once the administration fills the top roles at the FDA, both sides of the abortion debate could have a better idea of what will happen and when.

“We do know that the Biden administration is supportive of reproductive health in the way that the previous administration was not,” said Shochet, using the pro-abortion euphemism. “But what their timeline is? No idea.” She called it “the No. 1 question that everyone in our field is wondering”—including staffs at the abortion pill startups.

The pandemic has already paved the way for at-home abortions by mail.

Reactions to the ruling varied. On Jan. 13, Choix displayed a pop-up on its homepage explaining the Supreme Court ruling had forced it to halt services. Into early February, the Choix website still said the organization could not provide the abortive drugs.

But Hey Jane kept delivering pills to patients after the ruling. A customer service agent confirmed as much via text message on Jan. 19, saying the chances of someone facing legal repercussions for obtaining the abortion pill online in New York or Washington state are “extremely unlikely.” (Hey Jane did not reply to later attempts to check the status of the program in late January and early February, but the website makes no mention of halting services.)

Both states are among 15 that since 2016 have been participating in a Gynuity Health Projects clinical study that allows women to legally sidestep FDA restrictions and obtain the abortion pill by telemedicine from providers licensed in their states. Shochet, who directs the TelAbortion study, said the fact that some startups are still operating in states that offer the study is “not a total coincidence.” Some states limit or prohibit abortion pills via telemedicine. But states like New York and Washington have fewer restrictions on the abortion pill, allowing TelAbortion to operate without a problem. The lax laws don’t give much accountability to operations like Hey Jane.

If the Biden administration removes FDA restrictions on the pills, state laws will determine how each state regulates mifepristone. And the pandemic has already paved the way for at-home abortions by mail. “The genie’s out of the bottle,” said Elisa Wells, co-founder of pro-abortion website Plan C, in a January article at Marie Claire. “And once the genie is out of the bottle, it’s really hard to get it back in.”