The Washington PostDemocracy Dies in Darkness

Opinion How the Biden administration can fight for women’s freedom

Packets of Mifepristone, an abortion medication, at a New Mexico clinic in 2022. (Paul Ratje/The Washington Post)

If the right-wing U.S. Supreme Court majority thought it could quiet the abortion battles by overruling Roe v. Wade and leaving states to develop policies, it was grossly mistaken. The battle to preserve women’s privacy and physical autonomy is shifting from abortion clinics to local pharmacies — with possible benefits for millions of women.

Since the Food and Drug Administration approved medication to induce early-term abortions in 2000, “use in the United States has quickly grown” to account for more than half of all U.S. abortions, according to the Kaiser Family Foundation. More recent rulings by the agency allow women to obtain mifepristone, a safe and effective abortion medication, at a pharmacy or by mail.

Forced-birth lawmakers have reacted by preventing pharmacies in their states from providing this FDA-approved care. In response, many women have turned to telemedicine services to obtain prescriptions by mail.

“Because the updated FDA label now allows for telehealth, mifepristone has emerged as an option for patients who are either unable to travel to clinic or for other reasons wish to have an abortion in the privacy of their own home,” KFF explains.

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Sadly, but predictably, some forced-birth states are seeking to block telehealth for abortions or to require at least one clinic in-person visit before receiving medication — despite the FDA ruling that in-person visits aren’t medically necessary.

(Many of the same states seeking to block access to telemedicine also have high pregnancy mortality rates and the lowest level of services for poor women and their families.)

In short, as science affords greater access to safe abortion, forced-birth states play whack-a-mole to thwart each advance. Women least able to travel to a state where their autonomy is respected pay the highest price in lost freedoms. The administration can do more to protect them from enduring pregnancies against their will.

Ushma D. Upadhyay, an expert in reproductive health at the University of California at San Francisco, points out that abortion patients and providers must complete bothersome paperwork that “does not exist for most other prescription medications, including ones with greater risks.” The FDA should work to eliminate nuisance forms and equalize requirements for all prescription drug users.

President Biden has already issued an executive order that, among other steps, reminds the nation’s 60,000 retail pharmacies that they “are prohibited under law from discriminating on the basis of race, color, national origin, sex, age, and disability in their programs and activities.” The administration cannot reverse bans and restrictions in more than a dozen states that have left tens of millions of women without access to safe in-clinic abortion services. But it can work to promote telemedicine not only for abortion patients but also for all Americans seeking a time- and cost-saving way to obtain care.

The Justice Department can also file suits, as needed, to defend women’s rights to travel to obtain abortion services and to prevent discrimination at pharmacies wherever women are victims because they seek abortion medications.

One wonders where this will lead. Will forced-birth states paw through women’s mail in search of mail-order medication? Will they start arresting women for receiving medicine if the prescribing doctors and pharmacy providers are beyond state jurisdiction?

The administration should use every power at its disposal to stop states from limiting choices for women after the FDA has found them to be safe. The lives and liberties of women must not become the playthings of state legislatures running amok.