By: H.R. Fitzmorris

Since the time of the Comstock Act, reproductive healthcare seekers have turned to networks outside of the traditional doctor’s office to circumvent legal and social obstacles. Almost 60 years after the restriction of mail-order contraception was abandoned, Americans have once again—with the aid of the internet— found themselves relying on the post office to meet reproductive healthcare needs through telehealth. And once again, they face the familiar struggle of navigating complex webs of overlapping regulations and political hostility limiting their access to vital resources and information. However, the healthcare crisis spurred by the COVID-19 pandemic, and the resulting regulatory and legal changes, have helped abortion and reproductive healthcare seekers circumvent some of the most burdensome barriers to access. The question now is whether, together, technological advancement in online telehealth and the relaxation of state and federal regulations will be enough to address the “access crisis” that will ensue if the current onslaught of draconian abortion laws survives legal challenges.

The History of Telehealth and How It Works

The concept of telehealth has existed in some form or another for decades. Telehealth, according to the Mayo Clinic, “is the use of digital information and communication technologies, such as computers and mobile devices, to access health care services remotely and manage your health care.” Some clear advantages of telehealth are the ability to access care without the additional cost and burden of traveling to a doctor’s office, increased access to information and records, and increased speed of communication with healthcare providers.

There are, however, drawbacks. The regulatory system managing telehealth providers is fragmented between state and federal requirements, and insurance coverage of telehealth appointments varies according to location and provider. Licensure requirements currently depend on the location of the patient, so some specialist services or medical providers may not be licensed to provide care to patients in certain locations. Additionally, access to telehealth can be impeded by restrictive interpretations of existing state statutes and regulations. For example, state requirements that clinicians conduct an in-person physical exam of a patient before providing telehealth or issuing a prescription can dramatically impede the utility of telehealth for certain patients.

Currently telehealth makes up a small portion of the health industry as a whole. A study conducted from March 1, 2020 through November 30, 2021 revealed that the vast majority of Americans prefer in-person healthcare, “and the total addressable market for telehealth is less than 1% of the health economy.” However, the lessons learned throughout the COVID-19 pandemic may spur further expansion and increased interest in telehealth.

Covid-19 Changes

The COVID-19 pandemic upended the normal operation of innumerable day-to-day activities for most Americans. Once simple tasks became onerous, if not impossible. Notably, routine healthcare became extremely difficult to schedule when COVID exposure risks closed doctors’ offices, and the industry as a whole buckled under extreme demand. Faced with restricted access to in-person office visits due to lockdown orders and overwhelmed providers, patients turned to telemedicine just as quarantined workers turned to Zoom.

In order to facilitate patient access to healthcare, Congress introduced a myriad of temporary regulatory relaxations and measures such as increased Medicare and Medicaid coverage of telehealth services, HIPAA flexibility, and notably, allowed authorized providers to prescribe controlled substances via telehealth, without the need for an in-person medical evaluation.

This affected not just those with pulled muscles, allergic reactions, or people with other routine but time-sensitive ailments that a quick 15-minute chat with a doctor and a quick prescription would clear up. Those experiencing unwanted pregnancies, who faced the daunting prospect of delayed access to care in understandably time-sensitive situations, also were faced with lockdown and quarantine orders in the most abortion-friendly states. In hostile states, the harm of existing restrictive abortion regulations increased under COVID-19 (such as those requiring multiple in-person clinic visits like mandatory waiting periods and ultra-sound requirements). Additionally, some states that were hostile to abortion seized the opportunity to label abortion care as “non-essential,” thereby entirely restricting abortion access.

These restrictions made early access to safe, reliable, and self-administrable abortion care all the more vital. Medical abortion, which is achieved through the simple administration of a single or multi-dose pill, is available up to 10 weeks from conception. Prior to the COVID-19 pandemic, the reach of medical abortion through telemedicine was limited by “specific restrictions on mifepristone in the United States as well as laws that specifically prohibit telemedicine for abortion.” Specifically, the FDA required that either of the two abortion pills be dispensed in a medical clinic, in-person.

However, with the relaxation of the restrictions placed on telemedicine providers that came with the governmental response to COVID, the FDA relaxed the in-person requirement and allowed abortion pills to be obtained by mail, eliminating the need for a doctor visit and the resulting delay in access. Initially this relaxation was temporary, but in December, 2021, the FDA announced that the change will be permanent. Though a welcome reduction in barriers to safe and effective abortion access, states are still free to place their own restrictions on telemedicine providers that offer their services in their jurisdictions. Currently, 19 states prohibit telemedicine facilitated abortions.

Without these barriers, telemedicine can potentially increase abortion access to abortion seekers in underserved, isolated communities. Telemedicine was, in a limited way, able to address severe need in a crisis that strongly necessitated these services. For abortion seekers in the United States, the crisis is far from over. Current restrictive state statutes and attempts to overturn Roe v. Wade continually threaten access to the constitutional right to choose to terminate a pregnancy. In many states, local access to abortion care could disappear entirely in the coming years. What remains unclear is whether further expansion of access to telemedicine will be able to help fill these gaps and what policy changes will be necessary in order to do so.