‘Cruel’: the supreme court could send one-time abortion deserts like Hawaii back in time
They treated a patient who had wanted to get pregnant, but decided to get an abortion rather than have a child with her abusive partner. They treated patients who had lost their houses in the 2023 Maui fires, found themselves homeless and pregnant, and wanted abortions. They treated patients who got pregnant after someone tampered with their birth control and patients who could not afford to take time off work to have an abortion.
Related: The mifepristone case: abortion and the US supreme court meet again
Colleen Bass and Sharon Offley, two certified nurse midwives from Hawaii, were able to do all of that because the Food and Drug Administration (FDA) decided, over the last decade, to expand the availability of a common abortion pill.
Bass and Offley run a full-spectrum women’s healthcare clinic on the small Hawaiian island of Kauai. Adding abortion services in 2021, as the FDA’s rules around the pill evolved, was “kind of a no-brainer”, Offley said.
“It felt like a moral obligation,” she said. “As our community became aware of our services, we became aware that there was a much greater demand and a need for abortion services than we had even known previously.”
But now, the US supreme court, nearly 5,000 miles away from Bass and Offley’s idyllic practice a block from the Pacific Ocean, could jeopardize the future of their work.
On Tuesday, the court will hear arguments in a case about mifepristone, one of two drugs commonly used in a US medication abortion. It is the first major abortion case to make it back to the nation’s highest court since its 6-3 conservative majority ruled in 2022 to overturn Roe v Wade, and its outcome could severely restrict the availability of medication abortion – a regimen that now accounts for 63% of all US abortions, according to data released this week by the Guttmacher Institute.
The rightwing anti-abortion groups who filed the case have argued that the FDA overstepped its authority when it first approved mifepristone for use in abortions in 2000, but the supreme court will focus on later measures, taken by the FDA in 2016 and 2021, that significantly expanded access to the drug.
Those measures permitted healthcare providers other than doctors to prescribe mifepristone. They also eased restrictions that had forced patients to pick mifepristone up in person from facilities that had to meet arduous certification requirements. Today, patients can receive mifepristone through telemedicine as well as pick it up at their everyday pharmacies.
If the supreme court rewinds these measures, many people will likely have to go to much greater lengths to end their pregnancies. The availability of abortion in the US would plummet, abortion providers and their supporters told the Guardian – even in states where abortion remains legal, such as Hawaii.
“If the supreme court overrides the FDA and reinstates the in-person dispensing requirements, there is no doubt that some prescribers who are currently offering this essential medication to their patients will no longer be able to do so,” said Julia Kaye, senior staff attorney at the ACLU’s Reproductive Freedom Project, who co-authored an amicus brief in the case. “For some patients – particularly low-income patients, people of color, folks living in rural areas and women with abusive partners – losing a telehealth option for mifepristone would mean losing access altogether.”
***
Providers in Hawaii already know the consequences of these restrictions, because they have lived through them.
Hawaii is a reliably Democratic state whose lawmakers have built strong state-level protections for abortion. But just because abortion is legal does not mean it is accessible – and in reality, much of watery Hawaii was an abortion “desert” even before Roe’s demise. Out of the eight major islands that make up the Hawaiian archipelago, five did not have abortion providers as of 2021. Patients often had little choice but to take an often pricey flight or boat ride to the islands of Oahu, Hawaii Island or Maui for the procedure.
Related: Pacific Islanders and Native Hawaiians highly supportive of legal abortion – poll
Dr Graham Chelius, a family medicine doctor on Kauai, sued the US government in 2017, arguing that the FDA should loosen its rules around mifepristone, which at the time required an onerous certification process to be able to dispense the drug. Those rules meant that Chelius’s patients could not obtain medication abortions on Kauai – despite the fact that the drug has been found to be safer than Viagra.
In court documents, Chelius detailed his patients’ struggle to travel from Kauai and from its surrounding smaller islands – including an island that does not have paved roads or cellphone service, much less health care providers – to Oahu, which is roughly 100 miles away from Kauai. One woman, who already had one child and was struggling with addiction, arrived at Chelius’s office seeking an abortion. Because Chelius was blocked from giving her abortion pills, she had to travel to Oahu. The difficulty of getting there delayed the woman’s abortion by six weeks.
Medication abortions are usually performed within the first trimester of pregnancy. Instead of taking a few pills, the delay meant the woman had to undergo a surgical abortion.
“It also required her to bear the costs of staying on Oahu – in a hotel, away from her home and her family – overnight,” Chelius wrote in court documents. “This was utterly unaffordable for her.”
Other patients could not swing the trip.
“We had cases where women carried pregnancies to term against their will, despite extraordinary measures that we went through at the time to try to get people to travel to Oahu to access women’s healthcare,” Chelius said in an interview.
The time between knowing you want an abortion and getting an abortion – that can be torture for people
Dr Jamie Phifer
Because of the complex nature of the case, there are a dizzying array of possible outcomes. The court could reverse the rules that allowed telehealth abortion. It could narrow the range of providers permitted to prescribe mifepristone. Retail pharmacies, like CVS and Walgreens, which just recently began dispensing the pill, could lose their ability to stock it.
The anti-abortion activists who brought the lawsuit against the FDA have argued in court papers that in-person visits are necessary to properly assess the age of a pregnancy and to diagnose ectopic pregnancies, or doomed pregnancies that cannot be treated through an abortion. Over the last decade, they say, the FDA has erased important safeguards without the data to back up their decisions.
But more than 100 studies of mifepristone, conducted across multiple countries, have all concluded that the drug can be safely used to terminate a pregnancy. The World Health Organization has laid out a protocol for people to use the drug to “self-manage” their own abortions, without any doctor supervision. And out of more than 6,000 telemedicine abortions conducted in the United States between 2021 and 2022, fewer than 1% reported serious adverse reactions, according to a study released last month.
“This will have a really profound impact everywhere and probably a disproportionate impact on our island, because of the necessity moving forward for basically everyone seeking an abortion to have to get on an airplane and fly,” Offley said. “Seeking an abortion for any reason – undesired pregnancy, rape, incest, fetal anomaly. There’d be no distinction. That service would disappear.”
***
The FDA decided in 2021, amid the coronavirus pandemic, to allow providers to offer telemedicine abortions. That change became permanent in 2023. The decision gave rise to a new kind of provider: the entirely virtual abortion clinic. Such clinics service women all over the country, helping offset the impact of the state abortion bans that effectively shuttered all of the brick-and-mortar clinics in more than a dozen red states.
In September 2023, providers performed almost 14,000 abortions via telehealth – 16% of all abortions in the country. Some of these abortions were legally provided even to people who live in the 16 states with near-total abortion bans, under “shield laws”. On the books in a handful of states, these statutes essentially commit states to protecting providers who prescribe and ship pills to people in states with restrictions.
Virtual clinics can be a critical release valve for brick-and-mortar clinics, which are often booked out for weeks in advance by patients fleeing states with abortion bans. “The biggest thing was time,” one 32-year-old telehealth abortion patient from Oregon told researchers in a 2023 study of telemedicine abortions. “[Clinics were] booked out for weeks, and I didn’t want to wait weeks.” Another patient, a 21-year-old also from Oregon, added: “I couldn’t afford a surgical or medical abortion from the clinic. [Telehealth care] is half the price of abortions where I live.”
“More than half of our patients are getting their medications delivered to their doorstep within 48 hours of engaging with our website,” said Dr Jamie Phifer, a family medicine doctor and medical director for Abortion on Demand, a virtual clinic that ships abortion pills to more than a dozen states where abortion is legal. “The time between knowing you want an abortion and getting an abortion – that can be torture for people.”
Phifer, like many representatives from other virtual clinics interviewed by the Guardian, did not know exactly what they would do if the supreme court moves to curtail access to mifepristone. One virtual clinic – Lilith Care, which serves Hawaii, Rhode Island and Massachusetts – would likely shut down altogether, the nurse-midwife behind the service said.
Typically, US medication abortions include doses of both mifepristone and a second drug, misoprostol. Depending on the justices’ eventual ruling, Abortion on Demand might switch to offering misoprostol-only abortions. Those abortions are safe and effective, but less effective than abortions performed using a combination of mifepristone and misoprostol. They can also be more painful.
“I think it’s frankly cruel to women when you know that a safe, effective method with mifepristone and misoprostol has been around for more than 23 years,” Phifer said. “And now you’re forcing them into a misoprostol-only regimen, which is three doses of a medication that makes you feel like absolute shit and results in a much more prolonged process.”
Bass and Offley have also debated moving to offering misoprostol-only abortions, a pivot that they called, in unison: “ludicrous”.
“It just seems so crazy that we’re even faced with this,” Bass said.
