A bill prohibiting doctors from issuing prescriptions for drugs to cause abortion via remote video or telephone conference passed Utah’s House Public Utilities, Energy, and Technology Standing Committee on January 30.
Utah’s bill, H.B. 154, which amends state rules regarding telehealth (the transmission of health services via electronic communication), includes a provision that a practitioner treating a patient through telehealth services “may not issue a prescription through electronic prescribing for a drug or treatment to cause an abortion, except in cases of rape, incest, or if the life of the mother would be endangered without an abortion.”
H.B. 154 now proceeds to the full House for debate. If enacted, a likely outcome given Republican supermajorities in both houses of Utah’s legislature, the law would make Utah the 20th state to ban “web cam” abortions.[1]
Telemedicine abortions consist of a video conversation between a physician located at one clinic and a patient located at another, remote clinic. The physician will prescribe drugs to cause an abortion and release the drugs to the patient via a remote-controlled drawer. The drug regimen, consisting of two kinds of drugs, is initiated while the physician and patient are still connected remotely, but is completed with the second drug up to two days later while the woman is on her own.
The only FDA-approved method for chemical abortions is the Mifeprex regimen, which the FDA allows up to 10 weeks gestation since last year (prior to the change, the regimen was approved for use up to seven weeks of gestation). This is a two-drug regimen: mifepristone acts to block progesterone receptors and thereby detach the gestational sac from the uterine wall, and misoprostol—taken up to 48 hours after mifepristone—induces contractions to expel the child from the womb. The woman is instructed to follow up with her healthcare provider one to two weeks after initiating the chemical abortion to check that the abortion was successful.
Chemical abortions have become increasingly common in the United States since the FDA approved the Mifeprex regimen in 2000. In 2001, six percent of all abortions were chemical abortions. By 2014, that number had risen to 31 percent. This increase has occurred even while the overall U.S. abortion rate has steadily declined—the most recent CDC abortion report shows that the nation’s abortion rate fell 21 percent between 2004 and 2013.
The trend towards more women seeking chemical abortions in the early weeks of pregnancy is likely to continue, giving laws such as the one proposed in Utah additional import. Yet, while chemical abortions have become increasingly common across the United States, telemedicine abortion has not become a common practice.
Telemedicine abortions are currently available in only three states—Iowa, Minnesota, and Maine. One reason that number is not higher is that some states have acted to pre-emptively prohibit the practice.
These laws have not gone unchallenged. In Iowa, the first telemedicine abortions were performed at a Planned Parenthood center in 2008. Between 2008 and 2015, more than 7,200 Iowa women obtained abortion-inducing drugs via Planned Parenthood of the Heartland’s telemedicine abortion program. But in 2013, state regulators on the Iowa Board of Medicine instituted a rule prohibiting the practice by requiring a physician to be physically present to examine the patient and provide abortion-inducing drugs. Planned Parenthood sued, and the case went all the way up to the Iowa Supreme Court, which ruled in June 2015 that the ban on telemedicine abortions was unconstitutional.
In that decision, the Iowa court held that the rule violated the “undue burden” test laid out by the U.S. Supreme Court in 1992 in Planned Parenthood v. Casey. The court chose not to weigh in on Planned Parenthood’s claim that the Iowa Constitution provides a broader right to abortion than the right available under the U.S. Constitution.
The court argued that Iowa’s purpose in passing the rule banning telemedicine abortions was not “to advance the state’s interest in advancing fetal life” but “to promote the health or interest of a woman seeking to terminate her pregnancy.” To advance that interest, the state argued that the physician’s personal presence was necessary to perform a physical examination of the patient prior to initiating a chemical abortion. The court held otherwise, stating that the weight of evidence presented to it indicated “that a pelvic examination prior to administering the mifepristone does not provide any measurable gain in patient safety.”
The court further ruled that a face-to-face encounter between a woman and physician prior to an abortion is unnecessary because “an increasing number of medical procedures are being performed today by telemedicine.” Iowa’s rule generally approved of the use of telemedicine, the court noted, but singled out chemical abortions for regulation. Because “the record indicates that the telemedicine rule would make it more challenging for many women who wish to exercise their constitutional right to terminate a pregnancy in Iowa to do so,” the court held that the rule placed an undue burden on a woman’s right to abortion and struck it down.
More recently, a legal settlement of Planned Parenthood’s lawsuit against the state of Idaho over a similar law was reached in January and will lead to the repeal of Idaho’s telemedicine abortion ban.
Despite these legal setbacks, states such as Utah are pushing ahead with prohibitions on telemedicine abortions on the premise that abortion is not like other medical procedures—abortion concerns not just the pregnant woman but also her unborn child. The sponsor of Utah’s bill said of the legislation, “If you’re going to have an abortion, you have to see a doctor. You’re not going to have an abortion by email or by remote technology.”
Proponents of telemedicine abortion bans argue that while increasingly common for some medical procedures, telemedicine is not used anywhere in the country for any invasive procedures other than abortion. They argue that a physician’s physical presence with a patient seeking a chemical abortion is important for several reasons, including the possibility that the abortion might fail (five to 16 percent of chemical abortions fail, and failure rates rise the later in pregnancy a chemical abortion is attempted) or that complications arise for the woman afterwards.
If telemedicine abortions are permitted by law and become common practice, the importance of the physician-patient relationship in the abortion context that the Supreme Court emphasized to so great an extent in its 1973 decision in Roe v. Wade will be greatly diminished. In Roe, Justice Blackmun wrote that during the first trimester, “the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman’s attending physician.”
Women undergoing chemical abortions via telemedicine do so with the approval of a physician they have likely never met and will never meet in person. That is a far cry from the physician-patient relationship envisioned—perhaps naively—by the justices in the Roe majority.
Tim Bradley is a research associate at the Charlotte Lozier Institute.
[1] States that have passed laws prohibiting telemedicine abortions include: Alabama, Arizona, Arkansas, Idaho, Indiana, Iowa, Kansas, Louisiana, Michigan, Mississippi, Missouri, Nebraska, North Carolina, North Dakota, Oklahoma, South Dakota, Tennessee, Texas, and Wisconsin.
