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By Mary Carpenter
NEW attention on “the abortion pill”—in anticipation of the Supreme Court overturning Roe v. Wade—has cast a brighter light on telemedicine and drug prescribing, especially that conducted across state lines. Under the public health emergency (PHE) of the pandemic, federal regulations granting more flexibility to providers removed most requirements of in-person visits for obtaining prescription medications, including for medical abortions (using medication to end a pregnancy), but this already-extended flexibility is likely to end in July.
Telemedicine, however, also falls under state law, and at least half of the states have already retightened licensing rules. Patients of Maryland’s Johns Hopkins Medicine can no longer receive remote care; and Mass General Brigham has cut off telehealth services to thousands of patients. University of Utah Health alone conducted about 100,000 out-of-state telemedicine visits in 2020.
Prior to the pandemic, individual states’ laws had not caught up with the “new techno-geographic realities of 21st century medicine…the legality of everyday clinical practices, such as calling in a prescription for a patient in another state, remains problematic,” according to the American Academy of Psychiatry and the Law. Many states required “an in-person encounter with a physical examination.”
Patients residing in Virginia, for example, may obtain prescriptions only from doctors who reside in that state. In Missouri, a phone call from a New York physician for a vacationing patient “constitutes the practice of medicine and ostensibly requires full licensure” of both doctors—that is, the New York doctor needs licensure in Missouri—without which that phone call “appears to constitute a crime.” Advice to traveling patients includes checking with state rules about how often you must be seen by your out-of-state prescriber, or how much time you have to find a doctor in your new state.
For medical abortion, 19 states currently prohibit prescribing the two-pill combination of mifepristone and misoprostol by telemedicine or delivering the pills via mail. (For surgical abortions, many states require two- or three in-person visits as well as an ultrasound examination.) While FDA protocol allows the pill regimen up to 10 weeks after the first day of a missed period, many states ban medical abortion after five or six weeks—and Alabama makes abortion at any stage a felony offense, with no exception for rape. Medical abortion comprises 39% of all abortions in the U.S.—but “if Roe is overturned, about half of states are expected to ban abortion altogether.”
Another contentious issue in telemedicine prescribing involves controlled substances (CS)—notably pediatric medications, such as Adderall, for attention deficit disorder and buprenorphine, used in medication-assisted therapies for substance-use disorders that are regulated by the Drug Enforcement Administration (DEA). In 2008, the Ryan Haight Online Pharmacy Consumer Protection Act (named for an 18- year-old who died from an overdose of Vicodin prescribed via a telemedicine consult) required practitioners to conduct an in-person medical evaluation before prescribing CS medications —with different guidelines on buprenorphine for patients residing in a DEA-registered facility.
With pandemic-inspired flexibility, practitioners could prescribe most controlled substances via telemedicine communication, “using an audio-visual, real-time and two-way interactive communication system.” (The most strictly regulated Schedule 1 drugs do not fall under this temporary flexibility, and include marijuana and heroin, as well as most psychedelic drugs, deemed to have no medical value and high risk of abuse, although Schedule 2 drugs include, for example, PCP, cocaine and meth.)
In an early study of substance-use-disorder providers, the greater flexibility expanded treatment for their patients. For all telehealth visits, a CDC study found that these increased by 50% during the first quarter of 2020 compared with the same period in 2019; while another study found that, of more than 2,000 patients receiving at least one telehealth visit during the pandemic, 79% expressed satisfaction with the visit, and 73% expect to continue receiving virtual health care services after the pandemic.
For medical abortions, still-unresolved questions include whether out-of-state providers of abortion services to people in restricted states can be prosecuted and whether there are “actions policy makers in states that allow telehealth abortion can take to protect clinicians in their state,” according to the Kaiser Family Foundation Women’s Health Policy site. Other questions arise around distribution issues, such as whether providers can mail medication across state lines or whether patients would need to travel to access the medication.
Meanwhile, new startups specializing in telemedicine abortions, such as Hey Jane and Just the pill, have begun offering services in states that allow them. And manufacturers of abortion medication are submitting proposals to the FDA to further relax dispensing rules, such as those that require doctors and pharmacies involved in abortion-pill dispensing to be certified by the manufacturers.
On the other hand, Louisiana Republicans want to rewrite the state’s homicide statute to protect unborn children from the moment of fertilization —enabling criminal prosecution of women, not only those who get abortions, but also those using in-vitro fertilization, intrauterine devices and emergency contraception (the morning-after pill, levonorgestrel). Other states may ban birth control altogether.
The greatest burden of current and anticipated restrictions falls on the poorest women and women of color, who are the least able to travel or afford to get safe abortions and thus most likely to give birth when they can’t afford it, which in turn threatens those families with the fewest means. For women across class and race, the emotional challenges of deciding to abort and then of obtaining an abortion, which are already challenging, may become overwhelming.
—Mary Carpenter regularly reports on need-to-know topics in health and medicine.
Control over my own body has always been a hot button issue for me, even now at the age of 70. I am beyond angry at the imposition of someone else’s religious belief system on me, let alone every other woman in this country, and the flagrant misogyny. And don’t even get me started on the hypocrisy of saying wearing a mask is an infringement of individual rights, but being legally forced to carry an unwanted pregnancy is not. If men were the ones getting pregnant, going through labor, and having the bulk of childcare imposed on them, this whole discussion would never happen.