FORT WORTH, Texas — The federal government has made it easier for pregnant people to access abortion pills. But the regulatory change will have no immediate effect in Texas, where the two most restrictive abortion laws in the nation remain in place.
The Food and Drug Administration decided this month it would permanently codify a pandemic-era change that allowed abortion pills to be prescribed via telemedine and mailed directly to patients, instead of requiring that they be given to patients in person. But because of a new Texas law that specifically requires abortion pills to be dispensed in person, the FDA’s change will mean little for Texas women who want to end their pregnancies via pill.
“The federal rules have relaxed this requirement, but states are stepping forward and imposing their own,” said Yvette Lindgren, a reproductive rights and justice scholar at the University of Missouri-Kansas City School of Law.
Mifepristone is the only drug specifically approved by the FDA for use in medication abortion. It blocks hormones needed to continue a pregnancy, and is usually followed by a second drug, misoprostol, 24 to 48 hours later.
Before the pandemic, the FDA required that mifepristone be dispensed in person in a clinic or hospital setting, and only by providers who were registered to do so. In April, the federal government loosened these rules to allow for women to use telemedicine and for the prescriptions to be filled by mail during the COVID-19 pandemic. On Thursday, officials made that decision permanent.
“The federal policy permits these drugs to be mailed, but doesn’t require states to allow them to be mailed,” said legal expert Josh Blackman of the South Texas College of Law Houston. “The status quo will remain the same in Texas.”
The FDA’s decision conflicts with a new Texas law that went into effect Dec. 2, which makes it harder for women to access abortion pills in Texas. Texas’ law says that only physicians can prescribe medication abortions, and requires that they examine the pregnant woman in person and that the pregnant woman take the first drug in the regimen while in the doctor’s presence. The law also criminalizes the act of mailing or providing abortion-inducing drugs to a pregnant person. (The law does not directly criminalize the taking of abortion drugs, regardless of how they are obtained.)
State Rep. Stephanie Klick, a Republican from Fort Worth, co-authored the law, and said it would help protect women. In a Facebook post, she wrote that out-of-state doctors were “prescribing abortion-inducing drugs that are delivered through the mail with no medical supervision. As a nurse, I believe we had to act in order to go after these out of state individuals who are flagrantly violating Texas laws, and that is why I filed legislation to do so.”
In addition, the law says that abortion pills can only be used for women who are up to seven weeks’ pregnant, although the FDA permits using the drugs through 10 weeks of pregnancy. Reproductive health experts said the Texas law, which was passed during the Legislature’s second special session, does not rely on rigorous scientific evidence in its reasoning for limiting access to the pills. A landmark 2018 report from the National Academics of Science, Engineering and Medicine concluded that for all four types of legal abortion, including medication abortion, “serious complications are rare and occur far less frequently than during childbirth.”
Nationwide, abortion is on the decline. Both the number and the rate of abortions have been dropping steadily since the 1990s, according to the Kaiser Family Foundation. But even as abortion has become less common, more women have been opting to use abortion pills since they were first approved by the FDA in 2000. In 2019, medication abortions made up about 39% of all abortions in the state, according to the Texas Health and Human Services Commission.
Texas is one of 19 states with laws in place that either bans the use of telehealth or requires the physical presence of a provider when the drugs are dispensed, according to the Kaiser Family Foundation.
Greer Donley, an assistant professor at the University of Pittsburgh School of Law, said because Texas has banned the use of telehealth for abortion providers, the Texas law would only change if someone brought a legal challenge to it. Donley said if a plaintiff successfully argued that the FDA’s regulations preempted the Texas law, the law could be invalidated.
The law is the second major piece of abortion legislation enacted in Texas this year. Earlier in 2021, lawmakers passed Senate Bill 8, which outlaws almost all abortions after six weeks of pregnancy, which is before many people realize they are pregnant.
Both laws remain in place for the time being, while the country waits for the U.S. Supreme Court ruling on a Mississippi law that bans abortions after 15 weeks. The court’s ruling on that law is expected to determine whether the court will uphold the court’s precedent set in Roe v. Wade, which establishes a constitutional right to an abortion before a fetus is viable, or at about 23 weeks of pregnancy.
Lindgren, the professor from Kansas City, said the Texas law will continue the existing reality that your ability to get an abortion will depend on where you live. Like Texas, other states have also passed laws limiting access to medication abortions, although none are as restrictive as the Texas law, legal experts said.
“It really is creating a county in which we’re going to have a huge disparity of access,” Lindgren said. “It’s going to really fall hardest on people who have the least ability to maneuver around these restrictions.”
The most comprehensive survey of women who get abortions comes from the Guttmacher Institute, which supports access to abortion. At least 75% of women who had abortions in 2014 were poor, according to the survey, and 59% of people who got abortions had at least one previous birth. In Tarrant County, at least 4,943 county residents had an abortion last year, according to the state.
As abortion has become harder to access in Texas, most experts have predicted that the new laws will drive women to either get abortions later in pregnancy, as they find ways to travel to other states, or to access abortion pills outside of the traditional medical system. Women can access abortion pills via nonprofits like Aid Access, online pharmacies or, if they live close to the border, from Mexico.
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