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Excerpted From: Kerri Pinchuk, California Policy Recommendations for Realizing the Promise of Medication Abortion: How the Covid-19 Public Health Emergency Offers a Unique Lens for Catalyzing Change, 18 Hastings Race and Poverty Law Journal 265 (Summer, 2021) (184 Footnotes)d (Full Document)


KerriPinchukMedication abortion, commonly referred to as the “abortion pill,” is a safe and effective method of self-managed abortion. [Medication Abortion] has become an increasingly popular choice among patients seeking both therapeutic and elective abortions. More than four million women have used [Medication Abortion] to end an early pregnancy in the United States. Now the most commonly used method of abortion for pregnancies up to ten weeks' gestation, [Medication Abortion] accounted for sixty percent of all such abortions in the United States in 2017. Patients opt for [Medication Abortion] over surgical procedures for a variety of reasons, chief among them the privacy, comfort, and convenience of passing a pregnancy at home, which often comes with the support of friends or family.

In addition to these patient benefits, clinicians, advocates, and experts across the country celebrate [Medication Abortion] for its power to expand access to low-income patients and patients living in rural areas. But this power remains largely inhibited by federal dispensation requirements, costly components of care delivery, low reimbursement rates for providers, and, importantly, obstruction by anti-abortion politicians. Among many other gaps in the U.S. health care system, these barriers to [Medication Abortion] provision have been highlighted by the COVID-19 public health emergency.

MAB involves a pill regimen of two medications, mifepristone (brand name Mifeprex) and misoprostol (brand name Cytotec, among others), prescribed by a clinician and ingested successively. First, mifepristone blocks the body's production of progesterone, the hormone necessary for a pregnancy to develop, effectively terminating the pregnancy. Taken up to forty-eight hours later, misoprostol then causes uterine contractions and cervical dilation, ultimately expelling the contents of the uterus. Federal law requires that the pills be dispensed to patients by a clinician, but depending on state laws, ingestion takes place in the presence of the prescribing clinician or at a time and location of the patient's choosing. In California, the patient may ingest the pills at a time and location of their choice. For the purposes of this note, I will focus almost exclusively on mifepristone because it is heavily restricted by the United States Food and Drug Administration (FDA). Misoprostol is commonly prescribed for uses other than MAB, including inducing labor and ripening the cervix before medical procedures, and is thus far less heavily restricted.

The COVID-19 public health emergency has highlighted disparities and opportunities for increasing access to [Medication Abortion] in California. The disparities are evident in reduced access for vulnerable patient populations due to increased financial hardship and diminished access to care. The opportunities lie in the fact that the temporarily relaxed in-person restrictions for [Medication Abortion] provisions created a window for understanding what the future of [Medication Abortion] could look like. This note considers the current landscape of [Medication Abortion] and ultimately provides three recommendations for actions California can take to ensure maximum and continuous access to [Medication Abortion] beyond the COVID-19 public health emergency: first, the State should foster collection and analysis of no-touch [Medication Abortion] and TeleMAB (MAB prescribed via telehealth) data collected while the FDA's in-person requirements were lifted. Second, the State should remove the costly dual-ultrasound requirement for Medi-Cal reimbursement. Third, the State should close a loophole in current telehealth policy that would prevent minors from accessing TeleMAB services.

This note begins by providing an introduction to the FDA's restrictions of [Medication Abortion] and its arguably politically motivated restrictions at the federal level. It also traces a brief history of [Medication Abortion] access during the COVID-19 pandemic, setting the stage for understanding how the temporary removal of in-person requirements may have affected access for Californians. Next, this note discusses restrictions on public funding at the federal and state level that decrease access for low-income and rural patients--and specifically, how the impacts of California's low reimbursement rates can be mitigated by removing the ultrasound requirement for MAB. Finally, this note finishes by proposing a solution for a loophole currently preventing minors from accessing TeleMAB in California.

[. . .]

“As goes California, so goes the nation.” Californians take pride in pioneering and influencing innovative policy on a range of issues, from environmental conservation to cutting-edge technology. While it is true that California is at the forefront of progress in reproductive rights, there is much more we can do to expand access to Californians--and to continue to push the rest of the country forward.

Medication abortion is safe, effective, and, as evidenced by current conditions, has unique power to reach low-income and rural patients. By supporting the collection of no-touch and TeleMAB data during the COVID-19 public health emergency, revisiting the ultrasound requirements for Medi-Cal reimbursement, and closing the loophole preventing minors from accessing TeleMAB, California can lean into its role as a reproductive freedom state. These are feasible solutions that align with the State's commitment to reproductive justice for all.

Juris Doctor Candidate, University of California, Hastings College of the Law.

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