'Massive uncertainty': Health care providers seek answers in wake of Roe v. Wade decision

With the U.S. Supreme Court’s decision to overturn Roe v. Wade, health care providers are questioning how to help patients legally navigate reproductive care.

After the ruling, several states moved to immediately ban abortions through so-called “trigger laws.” Jessie Hill, JD, the associate dean for research and faculty development and a professor at the Case Western University School of Law, told Healio that these laws are creating “widespread confusion.”

“Many questions will need to be resolved at the state level, and answers will vary geographically,” she said. “Many of these state abortion restrictions have never been implemented but are now suddenly in effect, and they are often vaguely worded and poorly written, creating massive uncertainty among patients, providers and others.”

Medication abortion

Medication abortion in particular has raised questions. Mifepristone and misoprostol have been determined by the FDA to be safe and effective abortion medications, according to HHS Secretary Xavier Becerra. During a recent press conference, Becerra said that federally funded programs are required to make these medications available to patients under certain circumstances, such as rape, incest or if the life of the pregnant person is in danger. However, when asked whether any physician in any state may prescribe them, Becerra could not provide a complete answer.

“Medications that may be classified as medication abortion that have received FDA’s approval as safe and effective are ... available for prescription. What I won’t do in answering your question is tell you what precisely that means,” he said. “Medication abortion — those treatments that the FDA has signed off on as safe and effective — are available to be prescribed. Under what conditions? Stay tuned.”

Becerra, who called the Supreme Court’s decision “despicable” but “not unpredictable,” said it will be imperative that federally supported programs and services continue to offer medication abortion under certain circumstances.

Hill explained that since medication abortion is a form of abortion, “it is subject to the same state laws as surgical abortion, in addition to being regulated by the FDA.”

“In addition, some states have restrictions specific to abortion medications, such as that they may not be provided by telehealth,” she said.

‘Legal gray area’

Another gray area for physicians is self-managed abortions. Organizations such as the nonprofit Aid Access provide self-managed medication abortion through telehealth outside of the health care setting. Previous research has shown that the demand for medication abortion through Aid Access increased substantially after the S.B. 8 law went into effect in Texas. According to Aid Access, healthy people fewer than 10 weeks pregnant can obtain medication abortion through an online consultation form. The medication can be mailed to patients’ homes, and they can take it with online assistance if they need it.

As of June 29, Aid Access said it is still serving all 50 states. However, Hill warned that the legal consequences of using these services are unclear.

“I do not want to express a legal opinion about any specific organization offering abortion medications over the internet, though I do know that some are operating in a legal gray area because they are located overseas and therefore may not be complying with U.S. law and the laws of individual states,” she said. “Whether an individual can face legal consequences for using these services is going to depend on the laws of the individual states.”

For those with questions about legal rights and self-managed abortion, Hill recommended considering the legal organization If/When/How.

References:

Aid Access. https://aidaccess.org/en/. Accessed June 30, 2022

Aiken ARA, et al. JAMA Netw Open. 2022;doi:10.1001/jamanetworkopen.2022.1122.

HHS Secretary press conference regarding Supreme Court decision. https://www.youtube.com/watch?v=9DRdr-LBomY. Published June 28, 2022. Accessed June 30, 2022.