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Excerpted From: Katherine Fang and Rachel Perler, Abortion in the Time of Covid-19: Telemedicine Restrictions and the Undue Burden Test, 32 Yale Journal of Law & Feminism 134 (2021) (Comment) (101 Footnotes) (Full Document)


FangandPerlerThe COVID-19 pandemic has disrupted the provision of health care and exacerbated existing health inequities. Reproductive health care, in particular, has been a site of both disruption and political contention. For example, when the United States first imposed COVID-19 lockdown restrictions in March 2020, Congress stalled in passing emergency relief measures in part because Senate Republicans insisted on including language banning federal funding for abortions. But most pandemic-era abortion restrictions have operated on the state level. Governors have used executive action to curtail access to abortion clinics, while leaving restrictions on remote prescribing of abortion medication untouched. Much attention has been directed toward state executive orders classifying surgical abortions as “non-essential medical procedures” to be postponed during the public health emergency. However, parallel state limitations on the provision of medication abortions via telemedicine (teleabortions) during the pandemic have received less attention. Though these latter constraints predate the pandemic, we argue that they have remained in place in a subset of states because of deliberate executive inaction while parallel restrictions on other telemedicine services have been suspended. Thus, this Comment critiques existing prohibitions on teleabortion and new surgical abortion limitations, to which we refer collectively as “pandemic-era restrictions.”

In this Comment, we argue that restrictions on teleabortions do not pass constitutional muster during the COVID-19 pandemic.

In Part I, we provide background on the safety considerations and the federal and state regulatory issues surrounding teleabortions.

In Part II, we argue that barriers to teleabortions are an undue burden during the present crisis in states where access to surgical abortions has been suspended.

In Part III, we conclude by asserting that teleabortion is a promising method for reducing health inequity, decreasing costs, and strengthening reproductive health infrastructure in the United States. We further contend that telemedicine is a reliable method for delivering reproductive health care, even after the pandemic lapses. The current public health crisis is a fertile ground for experimenting with new health care delivery models while normal services are disrupted. Innovations during the pandemic could advance health equity in the future.

[. . .]

This Comment argues that pandemic-era restrictions on teleabortion create an undue burden during the unique circumstances of the COVID-19 pandemic. In the subset of states with existing teleabortion restrictions, those restrictions have remained in places while comparable federal restrictions have been enjoined as unduly burdensome. Additionally, nine of the nineteen states with teleabortion restrictions have attempted to curtail or entirely suspend access to abortion entirely during the pandemic. Although courts have disallowed complete bans on abortion during the pandemic, many women still face extraordinary burdens when seeking an abortion--from additional expenses to potential exposure to COVID-19. These burdens are especially onerous in low-income communities and communities of color, in which women are more likely to experience difficulties accessing reproductive care. In light of the extraordinary circumstances of the COVID-19 pandemic, targeted restrictions on teleabortion do not pass constitutional muster.

A targeted critique of the regulatory regime surrounding teleabortions is especially timely, as teleabortion will likely garner substantial debate in the coming years. Commentators estimate that telehealth will occupy a much more substantial role in health care provision after the COVID-19 pandemic. And an increasing number of women are availing themselves of medication abortions. The rate of “abortion pill” use relative to the total number of abortions in the first eight weeks of gestation is 41.9% and growing. While teleabortion was not widespread before the pandemic, preliminary clinical research suggests that medication abortion is just as safe when administered remotely. During the pandemic, providers in many states will observe the clinical outcomes of teleabortion firsthand. This record will provide rich information about the sustainability, safety, and health equity impacts of teleabortion in the future.

Finally, we argue that teleabortion is a promising health care innovation during and outside of public health emergencies. And during the COVID-19 pandemic, restrictions do not withstand scrutiny. States are prohibited from imposing “undue burdens” to abortions. When they proscribe visits to an abortion clinic in the name of public health, teleabortions can fill the gap left behind. Justice Kavanaugh put it best in a dissenting opinion attached to the stay order in June Medical, before a hearing on the merits of Louisiana's abortion law. In that case, he urged a “good faith” effort “to reach a definitive conclusion” about whether a law mandating admitting privileges for abortion providers would indeed impose an “undue burden.” He suggested allowing the state law to go into effect would resolve the empirical debate about whether it was restrictive, because then the Court could observe whether the number of abortion providers in Louisiana shrank as a result of the legislation. In the unusual times we find ourselves, Justice Kavanaugh's admonition might be uniquely instructive: with pandemic disruptions circumscribing surgical abortions, the country has a chance to empirically observe teleabortion's safety and impact on health equity. If it proves safe, effective, and accessible in our current moment of crisis, states and the federal government should take coordinated actions to permit teleabortion services to continue, in light of the reproductive justice and health equity values at stake.

Katherine Fang is a second-year student at Yale Law School.

Rachel Perler is a second-year student at Yale Law School.

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