Understanding the Legality of Abortion: A US/UK Comparative Framework (Part III)
Introduction:
The purpose of this blog post series is to break down the U.S./U.K. abortion legislation comparison in three major ways: in the first installment, we took a closer look at the history of abortion legislation and the current laws on the books in both countries. In the previous installment, we delved into the legislative limits of the current laws in practice, as well as the ways in which certain laws are actually less restrictive than they appear to be. In this final installment, we will take a look at how the COVID-19 pandemic of the past year and a half has affected the two countries’ abortion protocols and we’ll look at the indicators for future accessibility of abortion. Hopefully, these comparisons will offer insights into how the United States’ abortion legislation operates, how it is manipulated in practice, and what is possible for the future of abortion access and abortion equity in this country.
U.S. Abortion Laws in the COVID-19 Pandemic:
At the beginning of the United States’ COVID-19 lockdown in mid-March 2020, states began imposing variations of “stay-at-home” orders and elective procedure guidance in order to curb the spread of COVID, although they did so at varying speeds and to varying degrees. By October 2020, every state except North Dakota had issued at least one of the two categories, if not both. (1) Stay-at-home orders ranged in severity and continued to be modified over the course of the pandemic, but some included shutting down in-person schooling, shutting down all “nonessential businesses” (excluding businesses such as grocery stores, banks, and gas stations), and only permitting citizens to leave their homes for groceries, for medicine, and for exercise. (1, 2) Many states also included guidance and/or mandates on elective procedures, sometimes within the framing of stay-at-home orders, that delayed elective and dental medical procedures. (1) Within these provisions, it was often signaled that “elective” procedures were not specifically defined, which created space for anti-abortion legislators and leaders to act during a time of extreme public fear and upheaval.
Many conservative states--already rated “hostile” or even “very hostile” to abortion rights by the Guttmacher Institute--immediately pounced on the admitted ambiguity of “elective” procedures as an opportunity to classify abortion as such, thus halting abortions altogether in many states. (3) Some states attempted to close the loophole definitively in favor of the “pro-life” agenda, attempting to make “public health emergency declarations to specifically define abortion as non-essential or elective health procedures” by erroneously claiming that abortion affected facilites’ access to PPE (personal protective equipment), which was in short supply due to the coronavirus pandemic.* Some of the resulting bans included hefty fees and even jail time for those seeking abortions and those providing abortions. (4)
For example, on March 22, 2020, Governor of Texas Greg Abbott issued an Executive Order prohibiting all surgeries and procedures that weren’t medically necessary, and Texas Attorney General Ken Paxton chose to interpret abortion within this category and declared “any type of abortion that is not medically necessary to preserve the life or health of the mother” as a violation of the Executive Order. He threatened that any “violations” would be “met with the full force of the law.” (5) These fear tactics and whiplash regulations resulted in more than 150 cancelled abortion appointments across Texas, and when clinics were forced to close in Texas, the average one-way driving distance to an abortion clinic increased from 12 miles to 243 miles. This set the stage for states like Alabama, Iowa, Ohio, Oklahoma, Tennessee, Louisiana, Alaska, West Virginia, Kentucky, Arkansas, and Mississippi to follow suit. (6)
Though these laws have all since expired, are no longer in effect, or have been blocked by federal court order, there has been a tangible effect on pregnant people seeking abortions, many of whom entered their secondor third trimester before these laws were dismantled, thereby making it impossible for them to ultimately seek a legal abortion. Beyond that, the harsh punishments threatened by these states likely instilled fear in many people seeking abortions, and the constantly changing regulations made it difficult for existing clinics to survive and reopen. And yet, clinics still face further challenges due to the pandemic: clinics have reported that since the beginning of the COVID-19 pandemic, incidents of harassment have actually increased. Clinics have typically relied on volunteer escorts to protect their patients from harassment as they walk into the clinic, but during the first wave of closures in March 2020, many clinics sent patient escorts home in order to follow local guidelines. However, protestors remained, some of whom expanded their tactics to include COVID specific aggression, such as coughing on patients. (6)
Specific attacks on the provision of telehealth options for medication abortion up to 10 weeks gestation were even more calculated and damaging during the past year and a half of the COVID-19 pandemic. On January 13th, the U.S. Supreme Court granted one of the Trump administration’s last requests, which was to remove a block on the U.S. Food and Drug Administration’s (FDA) restrictions on the remote distribution of medication abortion. (7) The FDA’s Risk Evaluation and Mitigation Strategy (REMS) mandates that mifepristone, the first of the two-step abortion pill, must be picked up by patients directly from a doctor’s office, a hospital, or a health center versus being picked up at a pharmacy or being received via mail. Leading medical associations such as the American College of Obstetricians and Gynecologists and the American Academy of Family Physicians have “maintained that the FDA’s long-standing restrictions on mifepristone are not based on evidence and do not benefit patients.” In fact, “out of 20,000 prescription medications regulated by the FDA, mifepristone is the only home-use medication required to be dispensed in person.” (7) Even according to the FDA itself, since approving the pill 20 years ago, mifepristone “has been increasingly used as its efficacy and safety have become well-established by both research and experience.” (7, 8)
Three lower courts had blocked the FDA’s in-person pick-up requirement during the COVID-19 pandemic, as it increases risk of exposure to the virus for a pill that is scientifically regarded to be safely administered at home. (9) However, the U.S. Supreme Court’s January 13th decision lifted that block, though Justice Sotomayor succinctly stated in her dissent that: “due to particularly severe health risks, vastly limited clinic options, and the 10-week window for obtaining a medication abortion, the FDA’s requirement that women obtain mifepristone in person during the COVID-19 pandemic places an unnecessary and undue burden on their right to abortion.” (7)
In yet another regulatory twist, after the transition to the Biden administration, the FDA was convinced to temporarily lift their in-person mifepristone requirement. On April 12th, 2021, FDA Commissioner Janet Woodcock sent a letter to the American College of Obstetricians and Gynecologists (ACOG) and the Society for Maternal-Fetal Medicine say that “her agency reviewed evidence and found that using telemedicine to provide abortion pills would not increase risks and would help patients avoid potential exposure to COVID-19.” (10, 11) Although this was a positive step forward for abortion access, the restriction is only being lifted until the end of the pandemic, and the FDA has not made a statement about their plans for after that point. In addition, this lifted restriction only applies to states that already allow telemedicine options for medication abortion. Currently, telehealth is not an option in the “26 states requiring patients receive an ultrasound before an abortion, and in the 12 states with in-person counseling requirements,” meaning that, considering overlap in those requirements, the lifted FDA restriction has no impact on 28 U.S. states. (10) The 22 states that benefit from this lifted requirement (as well as D.C.) include states that have been fighting to preserve abortion access throughout the pandemic.** (12, 13)
It has become increasingly clear that the pandemic, as well as the pandemic-induced recession, has only magnified people’s need for affordable and time-sensitive abortion access and reproductive health care. One of the few legislative advantages that is offered within the U.S. reproductive health system is that you do not need a prescription to get generic brands of emergency contraception (EC) pills--anybody (regardless of age or gender) can buy EC online or at pharmacies. But this does not yet apply to birth control methods such as the pill or the patch, which require a prescription from a nurse, doctor, or pharmacist, and obviously does not apply to the IUD or implant, which have to be put in place by a nurse or doctor. (14) Due to these requirements, it is perhaps unsurprising that in a May 2020 survey of women of reproductive age, 33% of respondents “experienced a cancellation or delay of contraceptive or other reproductive health care” due to the COVID pandemic and its resulting closures and supply/resource shortages. (6) Many simultaneously reported increased worry about their ability to pay for and access reproductive health care in the current economic climate caused by the pandemic. (6) For example, despite being technically able to access emergency contraception, it can cost up to $50 per pill. (15) The May 2020 survey also gathered that 34% of women of reproductive age “wanted to get pregnant later or wanted fewer children because of COVID,” with the majority again citing financial concerns. (6)
It is clear that the impact of COVID has created an even wider need for affordable and accessible abortion, contraception, and reproductive health options, but as for U.S. abortion policies, the future remains largely uncertain. In fact, the U.S. Supreme Court, which now skews conservative by a wide margin (6 to 3), has agreed to hear an abortion case this upcoming October that could easily peel back the protections to abortion currently established through federal law once the Court’s decision is rendered, likely by spring or summer 2022. (16) In summary, though the expansion of telemedical options for medication abortion is a progressive stride in abortion equity, it is disproportionately applicable throughout the country, and the foundation on which abortion rights are currently protected in the United States during and even lasting beyond the COVID-19 pandemic is not by any means a stable one.
U.K. Abortion Laws in the COVID-19 Pandemic:
Lockdown measures in the United Kingdom did not legally go into effect until March 26th, 2020, but they were much more restrictive than the measures in the United States, which varied state by state. There have been three national lockdowns in the U.K. so far, with the most recent starting on January 6th 2021, and all of the most recent lockdown limitations have only just been lifted as of June 21st. (17) At the beginning of the first lockdown, limits on telehealth abortion access were similar to the United States’ FDA restrictions, in that a person could take the second abortion pill, miseprostol, at home, but still had to go to a hospital or clinic for the first pill, mifepristone. (18) On March 30th, 2021, however, the U.K. government licensed homes to receive both abortion pills up to 9 weeks and 6 days gestation in England and Wales and up to 12 weeks gestation in Scotland. (19) Although currently this policy is only in place until the end of the pandemic or for the duration of two years--whichever marker comes first--the government has conducted a “public consultation” on whether the measure should be permanently retained. (18, 20)
If you are a pregnant person seeking abortion services via telemedicine in the U.K., the process is as follows: you have a consultation with a nurse or a midwife, which includes a discussion of pregnancy options, an assessment of safety at home, a review of medical history, an assessment of gestational age by last menstrual period, a determination of need for an ultrasound, a discussion of treatment options, and a discussion about ongoing contraception. For those patients who are under 18, there are additional telemedicine safeguards in place, such as a video call, an assessment of the likelihood of child sexual exploitation, and confirmation that there will be an adult over 18 present in the house while the patient is undergoing the termination of the pregnancy.
Two doctors then review the notes from the consultation, and they will either ask for further information or provide the requisite signatures for a prescription. The prescription sent out to the pharmacy includes mifepristone and misoprostol, as well as codeine for pain, a low-sensitivity pregnancy test, and progesterone-only birth control pills (if requested). Patients can easily track the shipment, which is delivered in plain packaging for discretion. The patient can also choose to pick up the package from a registered clinic. Clinics such as BPAS also provide online video instructions and 24-hour aftercare lines staffed by nurses and midwives. (18)
This complete service is free of charge from start to finish. It also significantly minimizes potential exposure to COVID-19 and strikes down multiple barriers of accessibility (ie. geographical barriers, privacy barriers, and socioeconomic barriers), thus making it an ideal option for those seeking abortions in England, Wales, and Scotland. Pregnant people seeking abortions in Northern Ireland--where abortion access is still limited despite its recent decriminalization--must be assesed by a doctor in Northern Ireland, who then determines eligibility for receiving abortion pills by mail from an English abortion clinic (which would be free of charge if approved). However, the doctor might refer the patient to an abortion service in Northern Ireland instead, which is currently a more difficult outcome to track. (21)
In September 2020 the British Pregnancy Advisory Service (BPAS), one of the leading abortion providers in the U.K., released information on the preliminary results of their “Pills by Post” program, which launched on April 8th 2020 in light of the changes in U.K. abortion policy. 97% of their consultations for abortion care are now being conducted via telephone and video call assessments, and this flexibility has led to more appointments being available to those seeking abortions. The waiting time for such a consultation has been reduced 50% from last year, to a median national waiting time of 2 days. Gestational age limits render every day critical when seeking an abortion through legal channels, which makes this reduction essential in providing quality abortion care. Reducing the wait time also has a significant public health effect, as terminations before 10 weeks’ gestation minimize the risk of subsequent health complications. With the help of Pills by Post, 86% of BPAS’ terminations were performed before 10 weeks’ gestation. Another interesting effect of the program is that, since its implementation, requests to the U.K.’s largest online provider of illegal abortion medication has ceased: a positive outcome from both a legal and public health perspective. (18)
What’s perhaps most notable about the Pills by Post program, however, is its impact on those using its services. Of all clients surveyed, BPAS reported a staggering 97% client satisfaction rate, with 80% saying they would opt to use Pills by Post again. And this isn’t a fluke--in a published study conducted by MSI Reproductive Choices UK, another leading abortion provider, 83% of surveyed patients preferred the telemedicine pathway. (22) It is clear that those seeking abortions in the U.K. overwhelmingly prefer to receive medication abortion by mail, and this could be for a variety of extremely legitimate reasons, from being in an abusive environment and needing privacy to protect one’s safety, to not having the childcare or employment support to go to a clinic in-person, to just being more comfortable with this method of access.
However, just because there is a defined telemedicine protocol for abortion access in the U.K. (including its status as an essential medical procedure), that doesn’t mean there are no longer existing limitations to accessing abortion or reproductive health care. For example, as lockdown restrictions have loosened, abortion clinic protests have recommenced, and there are currently no laws in place to maintain buffer zones around clinics. (23) There has also been a notable lack of access to emergency contraception due to the pandemic; a study showed that during the first lockdown, a third of pharmacies providing emergency hormonal contraception (EHC) were unable to provide mandatory consultations in a way that was both confidential and COVID-secure.*** Reports were also cited of pharmacists refusing to dispense EHC during this time period due to personal beliefs. The study showed that sales of EHC fell 50% from March to April 2020, and NHS pill prescriptions declined by 20% in that same period, which indicates clear existing barriers to carrying out essential reproductive health care. (24)
As far as the future of abortion rights is concerned, the next hurdle is the fact that the current measure allowing telemedicine abortion care is not yet a permananent measure. In order to assess this policy further, the U.K. conducted a public consultation, which is part of the U.K.’s current policy-making process. Consultation “makes preliminary analysis available for public scrutiny and allows additional evidence to be sought from a range of interested parties so as to inform the development of the policy or its implementation.” (25) The consultation closed on February 26th, 2021, but no further action has been taken as of this post’s publication. (26)
In the meantime, many organizations in support of retaining the policy have been collecting evidence as to its effectiveness and overall benefit to society. According to MSI Reproductive Choices UK, there has been no evidence to suggest that “telemedicine increases significant adverse events,” such as ectopic pregnancies, haemorrhaging that requires transfusions, or infections requiring hospital admission. The organization reiterates that telemedicine is preferred by a majority of their clients and is safer for their most vulnerable clients, such as those from marginalized populations or those living in abusive environments. Most importantly, MSI makes the point that telemedicine is not supposed to be a replacement for in-person care, but serves to give pregnant people seeking abortion a choice of available methods based on their individual needs and preferences. (27)
Conclusion:
While the written abortion legislation of both countries discussed in the first installment indicated that the U.S. was the more progressive of the two, in practice, abortion has been more widely accessible in the U.K. In light of the COVID-19 pandemic, the U.S. has become even more polarized in its abortion access equity, while the U.K. has bolstered its efforts to make abortion and related reproductive healthcare accessible via the widespread implementation of telemedicine. It is likely that these changes, and even the lifted FDA restriction in the U.S., would not have transpired so quickly without the motivating factor of the COVID-19 pandemic-- which rendered telemedicine options absolutely necessary for both continuing abortion care and containing such a widescale public health crisis. However, whether these emergency measures will translate to permanent change remains to be seen. What is clear is that in both countries, the expanded and permanent reach of telemedicine abortion options would certainly reduce maternal mortality and improve reproductive healthcare, especially for populations who have previously been the most severely limited to access, such as: poor women, disabled women, women of color, and those who experience domestic violence (as well as any and all intersections of these identities).
This multi-installment process of comparative analysis between the United States and the United Kingdom--not just through deciphering their legislative abortion histories or pre-pandemic abortion policy applications, but also through the context of how the pandemic has progressed or regressed such patterns--can hopefully illuminate how the United States has reached its current state of abortion acess equity. More importantly, through this side-by-side comparison, we can see what the possibilities for real change to abortion equity might look like, mapped out in another modern democratic country so similar and yet so vastly different from our own, as well as areas where collective improvement is warranted.
*Courts have found that postponing abortion services does not affect facilities’ continuing access to PPE, since medication abortion prescription requires very little to no PPE, and only a small percentage of surgical abortions (~3%) are carried out in hospitals. (CITE)
**For example, New Jersey Governor Phil Murphy’s March 23rd order prohibiting elective medical care has a specific exemption for family planning services, including abortion. “The order provides that it shall not be interpreted in any way to limit access to family planning services, including termination of pregnancies.”
***For clarification’s sake, emergency contraception (EC) or emergency hormonal contraception (EHC) is NOT the same thing as an abortion. EC/EHC prevents conception from happening in the first place.
Sources:
1. McGuireWoods: State Governors’ “Stay-at-Home” and Prohibition on Elective Procedures Orders: https://www.mcguirewoods.com/client-resources/Alerts/2020/10/state-governors-stay-at-home-prohibition-elective-procedures-orders
2. The Washington Post: You’re under a stay-at-home order? Here’s what that means in your state: https://www.washingtonpost.com/health/2020/04/06/coronavirus-stay-at-home-by-state/
3. The Guttmacher Institute: Surveying State Executive Orders Impacting Reproductive Health During the COVID-19 Pandemic:
4. The Kaiser Family Foundation (KFF): State Action to Limit Abortion Access During the COVID-19 Pandemic
5. The Center for Reproductive Rights: Abortion is Essential Healthcare:
https://reproductiverights.org/wp-content/uploads/2020/12/USP-COVID-FS-Interactive-Update.pdf
6. The National Women’s Law Center: Reproductive Rights & Health, Access to Abortion During the COVID-19 Pandemic and Recession:
https://nwlc.org/wp-content/uploads/2021/04/3.21-Brief-1-1.pdf
7. Planned Parenthood: Supreme Court Reinstates Medically Unnecessary Barriers to Abortion During COVID-19:
8. New York State Attorney General: Attorney General James Pushes to Increase Abortion Access by Medication During Coronavirus Pandemic
9. NPR: Supreme Court OKs White House Request To Limit Abortion Pill Access During Pandemic
10. The Kaiser Family Foundation (KFF): Medication Abortion and Telemedicine: Innovations and Barriers During the COVID-19 Emergency
11. TIME: Why Abortion Pills Are the Next Frontier in the Battle Over Reproductive Rights: https://time.com/5954429/fda-biden-abortion-pills/
12. The Guttmacher Institute: Medication Abortion:
https://www.guttmacher.org/state-policy/explore/medication-abortion
13. Rewire News Group: Abortion Access During COVID-19, State by State:
https://rewirenewsgroup.com/article/2020/04/14/abortion-access-covid-states/
14. Planned Parenthood: How do I get sexual health services during the COVID-19 pandemic?:
15. Planned Parenthood: What’s the Plan B morning-after pill?:
16. The New York Times: Supreme Court to Hear Abortion Case Challenging Roe v. Wade:
17. Institute for Government: Timeline of UK government coronavirus lockdowns:
https://www.instituteforgovernment.org.uk/charts/uk-government-coronavirus-lockdowns
18. British Pregnancy Advisory Service (BPAS): Pills by Post, Telemedical Abortion at the British Pregnancy Advisory Service (BPAS):
19. Royal College of Obstetricians and Gynaecologists: Coronavirus (COVID-19) – Information for women requiring abortion:
20. GOV.UK: Official Statistics, Abortion statistics for England and Wales during the COVID-19 pandemic:
21. British Pregnancy Advisory Services (BPAS): Abortion pills by post for women from
Northern Ireland:
https://www.bpas.org/abortion-care/considering-abortion/northern-ireland-pills-by-post/
22. British Medical Journal (BMJ): Acceptability of no-test medical abortion provided via telemedicine during Covid-19: analysis of patient-reported outcomes:
https://srh.bmj.com/content/early/2021/03/18/bmjsrh-2020-200954
23. British Pregnancy Advisory Services (BPAS): Demonstrations (Abortion Clinics) Bill:
https://www.bpas.org/media/3355/demonstrations-abortion-clinics-bill-briefing.pdf
24. British Pregnancy Advisory Services (BPAS): Emergency Contraception, Coronavirus, and Confidentiality: A mystery shop of pharmacy access during the pandemic:
https://www.bpas.org/media/3399/emergency-contraception.pdf
25. HM Government: Code of Practice on Consultation:
26. MSI Reproductive Choices UK: Help us make abortion telemedicine permanent: how to respond to the UK Gov consultation:
27. MSI Reproductive Choices UK: UK Government Telemedicine Consultation: our response and recommendations:
Infographic created by Isabella Cuan.