Medication Abortion, Telemedicine, and Dobbs—Key Considerations for Healthcare Providers

By: Claire Marblestone, FOLEY & LARDNER LLP

The U.S. Supreme Court’s recent decision in Dobbs v. Jackson Women’s Health Organization¹ has impacted access to abortion in the United States. In light of the Court’s decision, which returned the right to enact laws regarding reproductive healthcare to the states, many healthcare providers are navigating available ways to provide abortion services to patients, including by utilizing innovative telemedicine care modalities. 

HEALTHCARE PROVIDERS MUST COMPLY WITH MULTIPLE and sometimes conflicting state laws when providing abortion-related services utilizing telemedicine. This article will address several issues that healthcare providers should consider relating to prescribing abortion-inducing medication utilizing telemedicine modalities. This article will highlight several states’ laws to examine relevant legal and practical considerations for providers interested in providing medication abortions via telemedicine.

Terminating Pregnancy by Medication

A medication abortion and administering an abortion-inducing drug are terms that are used to describe the process whereby a patient is prescribed a medication that will end a pregnancy. As described in more detail below, the federal Food and Drug Administration (FDA) has approved a medication protocol that will safely terminate a pregnancy within the first nine weeks of pregnancy. The FDA-approved protocol for medication abortion involves taking two medications and does not require a procedure performed by a clinician. However, the protocol is subject to many of the same restrictions as other abortion methods, at both the state and federal levels. State law restrictions can be particularly burdensome, and, in some cases prohibitive, for virtual-based providers that do not have physical clinic locations in a particular state.

Federal and State Abortion Laws Pre-Dobbs

When considering how to provide abortion services, healthcare providers must consider both federal and state laws and regulations that apply to the service. Prior to Dobbs, Supreme Court precedent provided federal protection to an individual’s ability to obtain an abortion prior to viability of a fetus. In Roe v. Wade,² the Court held that abortion was within the scope of the personal liberty guaranteed by the U.S. Constitution’s Due Process Clause of the 14th Amendment, and that an individual had a right to obtain an abortion in the first trimester of pregnancy.

In Planned Parenthood of Southeastern Pennsylvania v. Casey,³ the Court affirmed an individual’s right to an abortion but modified the legal framework in evaluating laws that restricted abortion. The standard announced in Casey was that states could implement abortion restrictions as long as the purpose or effect of the laws did not place an undue burden on obtaining an abortion.

During the time that Roe and Casey were in effect, Congress did not pass a federal law to protect an individual’s right to an abortion, and the Constitution was not amended to specify this right. The recent decision in Dobbs reversed the precedent established by Roe and Casey and determined that the Constitution does not confer a right to abortion. As a result, there is no longer a federal legal doctrine protecting the right to an abortion. 

Federal Regulation of Abortion Medications

While there is no federal law affirming a right to an abortion, federal agencies have nonetheless approved the use of abortion-inducing drugs. These agency approvals, and their regulatory underpinnings, are an essential part of the consideration a provider must undertake when delivering medication abortion services. The FDA has approved a two-medication regimen of mifepristone and misoprostol to end a pregnancy through 70 days gestation (i.e., 70 days or less since the first day of the woman’s last menstrual period).⁴ When this regimen was first approved, the FDA adopted a Risk Evaluation and Mitigation Strategy (REMS) for mifepristone which, among other things, limited dispensing of mifepristone to patients in certain healthcare settings (clinics, medical offices, and hospitals) under the supervision of a certified prescriber.⁵

On December 16, 2021, the FDA issued modifications to the mifepristone REMS that removed thae in-person dispensing requirement and added provisions allowing mifepristone to be dispensed by certified pharmacies and through the mail. These changes will take effect after the medication’s manufacturers submit proposals to the FDA regarding how to implement the REMS modifications, and the FDA reviews and approves those submissions. Although the in-person dispensing requirements have ostensibly been lifted, the FDA still limits prescribing and dispensing authority to certified prescribers and pharmacies.

As discussed in more detail below, healthcare providers must comply with applicable state laws relating to dispensing and prescribing abortion-inducing drugs. There are unsettled questions as to whether those state laws are preempted by the FDA’s approved REMS for this medication.

To ensure compliance with federal law, healthcare providers interested in prescribing abortion-inducing drugs must be certified by one of the two mifepristone drug manufacturers. In addition, the providers will need to consider several aspects of state law pertaining to abortion services, as discussed in more detail below.

Compliance with State Telemedicine Laws

When telehealth technology is used for a patient exchange, the care is considered to be rendered in the state where the patient is located. This means that, in most cases, an individual provider needs to be licensed in the state where the patient is located in order to provide care to that patient. Similarly, the laws of the state where the patient is located will govern the informed consent process, the standard of care for the encounter, and any telemedicine-specific laws that a state may have adopted.

Definitions of Abortion

Healthcare providers will need to know the state laws that apply to abortions in the state where the patient is located. Most state laws define an abortion to include prescribing
a medication with the intent of terminating a pregnancy. For example, North Carolina defines an abortion in part to include the use or prescription of any “instrument, medicine, drug, or other substance or device” to terminate a woman’s pregnancy.⁶

Prohibitions on Abortion

If a provider is interested in prescribing an abortion-inducing drug, it is important to know whether an abortion can generally be performed in the state. In the wake of Dobbs,
the legal status of abortion care in several states is in flux. Multiple states have so-called trigger laws prohibiting or significantly restricting abortion that have gone, or will go, into effect following the Dobbs decision. Other states have laws that prohibited abortion prior to the Supreme Court’s decision in Roe (sometimes referred to as zombie laws). During the period of time when Roe and Casey were in effect, states could not enforce their pre-Roe laws universally prohibiting abortion in the state. Many states did not formally repeal those unenforceable laws from state statutes, however, and with the Dobbs decision, those state laws are now potentially enforceable. In addition, abortion laws in several states are temporarily enjoined by court order, or state actors are exercising enforcement discretion and adopting policies on how the law will be applied in the state. It is important for healthcare providers to confirm that an abortion may be provided to a patient in a particular state in general, prior to exploring the option for prescribing an abortion-inducing drug to the patient.

Limitations on Medication Abortions

Assuming that abortions can legally be provided in the state, healthcare providers will then need to consider whether there are limitations to the modality that can be utilized to provide abortion-inducing medication. This is particularly important for providers using telemedicine to engage with patients, as there are several state laws that could limit this modality for abortion care. The limitations on utilizing telemedicine to prescribe abortion medication may appear in a variety of state laws.

Some states, such as Kansas, explicitly prohibit the use of telemedicine modalities to provide abortion services.⁷ Other states, such as Wisconsin, implicitly prohibit or restrict use of telemedicine modalities by requiring an initial dose of mifepristone or other abortion-inducing drug to be administered to the patient in the same room and in the physical presence of the physician who prescribed the medication.⁸ Additionally, many states require an ultrasound be performed prior to an abortion or require in-person components to the abortion informed consent process. For example, Arizona requires both a pre-abortion ultrasound and that the provider meet in person with the pregnant woman to explain the procedure before the abortion can be performed.⁹

These types of state laws also serve as de facto limitations on utilizing telemedicine to prescribe abortion-inducing medication, because they require some level of service or care to be provided in person.

Additional Restrictions on Patients and Prescribers

Providers must also take into account whether the laws in a particular state place other restrictions on abortion-inducing medication that impact care delivery. Many states only allow a physician to prescribe an abortion-inducing drug, even though other allied health professionals may be authorized to prescribe medication in the state. For example, Nebraska only allows physicians to prescribe an abortion-inducing drug,¹⁰ even though Nebraska allows physician assistants and nurse practitioners to prescribe medication in other contexts.¹¹ This means that if a healthcare provider utilizes allied health professionals as part of routine care, those providers could not prescribe medication for abortions, and patients would need to have an appointment with a physician for this service.

Because abortions are usually defined to include prescribing medication to cause a pregnancy termination, providers also must comply with the detailed informed consent requirements for obtaining an abortion in the state. These informed consent requirements can include waiting periods, an obligation to provide information about the physical and psychological risks of an abortion, and information about child support options.¹² Some state laws require providers to give patients specific information about abortion-inducing medication, including the possibility of reversing the effects of mifepristone.¹³

Conclusion: Staying Apprised of Changes to State Laws

In summary, there are many considerations that healthcare providers must assess and comply with when providing medication abortion services using telemedicine modalities. State laws restricting abortion in general and medication abortions in particular may have been in place prior to the Dobbs decision. After Dobbs, providers desiring to enter into this space will not only have to consider existing state law restrictions on this service, but they will also have to regularly keep track of whether abortions can be obtained in the state. Although there may be some uncertainty as to how this will develop, in the meantime healthcare providers in this space will need to be extremely cognizant of the legal requirements for abortion care in the state or states in which they are operating. 

Claire Marblestone is a partner and healthcare lawyer with Foley & Lardner LLP. Her practice focuses on transactional and healthcare regulatory matters, with an emphasis on data privacy, corporate practice of medicine, provider enrollment, and licensure and certification. She advises hospitals, health systems, physician groups, digital health providers, and healthcare businesses on a range of regulatory and compliance issues, including unique opportunities presented by telemedicine and telehealth. Claire also provides regulatory and transactional counsel to companies specializing in women’s healthcare.

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1. 142 S. Ct. 2228 (2022). 2. 410 U.S. 113 (1973). 3. 505 U.S. 833 (1992). 4. https://www.fda.gov/drugs/postmarket-drug-safety-information-patients-and-providers/mifeprex-mifepristone-information. 5. https://www.accessdata. fda.gov/drugsatfda_docs/nda/2016/020687Orig1s020RemsR.pdf. 6. N.C. Gen. Stat. § 90-21.81(1). 7. Kan. Stat. Ann. § 40-2,215. 8. Wis. Stat. § 253.105(2). 9. Ariz. Rev. Stat. §§ 36-2153(A), 36-2156(A)(1)(a). 10. Neb. Rev. Stat. Ann § 28-335(1). 11. Neb. Rev. Stat. Ann. §§ 38-2055, 38-2315(2)(c). 12. E.g., Wis. Stat. § 253.10(3)(c)(1)(f), (c)(2)(b). 13. E.g., Mont. Code Ann. § 50-20-707(5)(f).