FDA allows access to abortion pill by mail as Roe under threat before Supreme Court

Women can access medication abortion for pregnancies up to 10 weeks without seeing a doctor in person

The federal government has moved to permanently allow access to abortion medication by mail, eliminating a longstanding barrier to the drug as a pending decision from a conservative majority on the US Supreme Court could upend abortion access across the US.

A decision from the Food and Drug Administration on 16 December repeals a requirement that the drug mifepristone – used in early abortion and miscarriage care – only be dispensed to patients in person from a hospital or health provider. Earlier this year, the FDA had temporarily lifted the in-person requirement for the coronavirus pandemic.

Thursday’s action means that more women who are unable to travel or who prefer care in their homes can access the medication, authorised for pregnancies up to 10 weeks’ gestation. It also allows health providers to prescribe the medication to patients through a telemedicine appointment who can then access pills by mail.

The announcement arrives as the nation’s high court mulls a decision in a Mississippi case that could determine whether Roe v Wade – the landmark 1973 ruling that enshrined constitutional protections for abortion care – and an affirming ruling in another case are overturned.

Roughly half of US states are prepared to effectively ban the procedure should the Supreme Court undermine decades of precedent protecting abortion access without excessive government intervention. At least 19 states have already banned telemedicine visits for abortion care, and several other states have moved to ban mail access to the medication.

Mifepristone was approved by the FDA in 2000 for what is called medication abortion. It is used in tandem with a second drug, misoprostol. The drugs are not available on the internet.

The agency’s announcement on Thursday follows a years-long legal challenge from the American Civil Liberties Union, which filed a lawsuit on behalf of abortion providers and medical groups in 2017.

The decision marks a “major step forward that will enable many more patients to get this safe and time-sensitive medication as soon as they are ready, without travel-related expenses and delay,” Georgeanne Usova, senior legislative counsel at the ACLU, said in a statement.

She said the decision will come as “tremendous relief for countless abortion and miscarriage patients,” particularly from those living in rural areas.

In 2017, 339,640 patients received medication abortions, accounting for roughly 39 per cent of all abortions that year, according to the Guttmacher Institute.

The FDA estimates that 3.7 million women have used the medication within the last two decades since its approval.

The agency’s decision “did not come a moment too soon,” said ACLU staff attorney Julia Kaye said in a statement.

On 1 December, nine justices on the conservative-majority court presided over roughly two hours of arguments in Dobbs v Jackson Women’s Health Organization.

The high court appears ready to uphold the Mississippi law at the centre of the case that bans abortions after 15 weeks.

Mississippi has pressed the court to dismiss 50-year-old precedent, as well as precedent established in a separate case, Planned Parenthood v Casey, that prohibits states from placing an “undue burden” on abortion access.

A decision in Dobbs could determine the fate of abortion access for millions of Americans, marking the biggest direct challenge to abortion rights in decades.

Overturning rulings in Roe and Casey would immediately or quickly ban all abortion in more than 20 states, forcing women who can afford it to travel hundreds of miles to safely access an abortion.

It remains unclear whether the court’s six conservative justices will uphold the Mississippi law or go further and undermine Roe entirely by allowing states to impose their own bans at different stages of pregnancy. A ruling is expected by June 2022.