Medication abortion restrictions could worsen delays for Texans at out-of-state clinics

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For more than a year, abortion clinics in New Mexico, Kansas and Colorado have been flooded with Texans seeking care that’s largely outlawed in the Lone Star State. Now, those clinics are bracing for another consequence of Texas’ anti-abortion animus as an Amarillo court ruling threatens access to medication abortion nationwide.

The U.S. Supreme Court has stayed that ruling until Wednesday at midnight and will then decide whether to leave it blocked while the case proceeds. If any part of the ruling goes into effect, abortion providers say it could have catastrophic results — especially for those traveling out of state to terminate their pregnancies.

“The parking lots are full of Texas license plates, every day,” said Emily Wales, president and CEO of Planned Parenthood Great Plains, which operates clinics in Kansas. “Everybody is stressed … but Texans are coming the farthest and they're often the most panicked.”

Medication abortion is less labor- and time- intensive than surgical procedures, allowing clinics to treat more patients and better absorb the deluge of need from Texas and the 12 other states that have almost totally banned abortion. The Food and Drug Administration recently began allowing the medication to be prescribed by telehealth providers and mailed to patients, which has streamlined operations further.

“It’s also just the stronger preference for so many patients,” Wales said. “No one in this moment … feels much control over their lives. Saying, ‘Oh, this type of procedure that you would prefer is no longer available to you because politicians don’t think it should be’ is so fundamentally terrible.”

With the court ruling on hold, the biggest barrier to care at the moment, Wales said, is confusion and fear.

Right now, she said, they’re just telling patients, “‘Yes, [mifepristone] is legal. No, it might not be when you get here … but just get yourself here and we’ll get you served.’”

Targeting a common method

Abortion, including medication abortion, has been virtually banned in Texas since the overturn of Roe v. Wade late last June. But last November, a group of anti-abortion doctors and medical associations filed a lawsuit in Amarillo, alleging harm from having to treat patients who experienced complications from medication abortion.

Mifepristone, when used alongside misoprostol, is the most common way Americans terminate pregnancies. Many studies, as well as 23 years of use on the market, have proven it to be safe and effective at terminating pregnancies.

But the Alliance Defending Freedom, a conservative Christian law firm, argued in the lawsuit that the FDA had improperly approved mifepristone, disregarded citizen complaints about it and endangered the health of pregnant women.

The ADF filed the lawsuit in Amarillo, where only one federal judge, Matthew Kacsmaryk, hears the vast majority of cases. Kacsmaryk, appointed to the bench by President Donald Trump in 2019, was previously a religious liberty lawyer who worked on anti-abortion causes.

In early April, Kacsmaryk issued a sweeping ruling that sided almost entirely with the ADF and the doctors they represent, taking the unprecedented step of revoking the FDA’s 2000 approval of mifepristone. Almost simultaneously, across the country, a federal judge ruled that mifepristone must remain approved, at least in the 17 states that brought that separate case, including New Mexico and Colorado.

The 5th U.S. Circuit Court of Appeals stepped in and offered a compromise to Kacsmaryk’s ruling: mifepristone would remain approved, but old restrictions on its use would be reinstated. Under this ruling, mifepristone could only be used up to seven weeks of pregnancy, not 10 weeks; it could not be sent through the mail; and providers would need to require three in-person visits to prescribe the medication.

These requirements — which are temporarily blocked by the Supreme Court — would further snarl an already overburdened abortion care system, providers and advocates say.

Impact of restrictions on clinics

On a recent Monday, Trust Women, an abortion clinic in Wichita, Kansas, got 16,000 phone calls to their hotline; many were repeat calls as people desperately tried to get through to book an appointment. This year, the clinic is on track to treat about 6,000 patients — the same number of patients who terminated their pregnancies at all clinics, statewide, before the Dobbs v. Jackson decision.

The majority of their patients come from out of state, mostly from Texas, and the majority opt for medication rather than a surgical procedure. Zachary Gingrich-Gaylord, a spokesperson for the clinic, said the 5th Circuit’s proposal would likely be unworkable for their patients.

“It’s already difficult enough for people to upend their whole life to travel 12 hours, one way,” he said. “If you just add in another visit, or two, you would have to spend a whole week here. It’s ridiculous and surreal.”

Most of their patients are already parents, and many travel these long distances with their children in tow, Gingrich-Gaylord said. Many are relying on support from abortion funds, family and friends to make the one visit; extending the trip simply isn’t an option.

For patients who do opt for a surgical abortion, restrictions on medication abortions will have trickle-down effects, said Amy Hagstrom Miller, president and CEO of Whole Woman’s Health, which operates abortion clinics in six states, including New Mexico.

“It will make waits longer,” Hagstrom Miller said. “Doing medication abortion by mail allowed us to free up the clinic space for people that either preferred or needed to have an in-clinic abortion, so those are the things we’re paying attention to.”

Whole Woman’s Health just opened a new clinic in Albuquerque, New Mexico, last month. Every patient they’ve treated has been from Texas, with the exception of one Arizonan, Hagstrom Miller said. They also operate an abortion fund that helps mitigate the cost of traveling out of state for a procedure they once offered in Texas.

“The stark reality is, though, no matter what we do to try to make a flight free [or] a hotel free, the majority of Texans aren’t making it through,” she said. “That doesn’t necessarily surprise me, because I know the lives of people that come to us for abortion services, but it's still just horrible to witness on our watch.”

A recent study from the Society of Family Planning’s #WeCount initiative found there were, nationally, more than 32,000 fewer abortions between July and December 2022 compared to the prior year. While states that still permit abortions are not making up the difference from the states that banned abortions, there was a notable increase in telehealth abortion services, which the 5th Circuit’s ruling would block.

What’s not counted in that data is the number of Texans pursuing self-managed abortions — obtaining the medications from online pharmacies, international nonprofits or by crossing the border into Mexico. It’s not yet clear how U.S. efforts to restrict mifepristone would impact the supply chains for these sources.

If mifepristone becomes further restricted, or moved off the market entirely, clinics that serve Texans say they are preparing to continue to offer misoprostol-only medication abortions. While misoprostol can be taken alone to terminate a pregnancy, it’s overall less effective and can cause greater side effects than when it’s taken alongside mifepristone.

Gingrich-Gaylord said that may make some people more reticent to go the medication route, especially if they have to travel back to a state where they fear seeking follow-up care for any complications.

“Then they may want a procedure, because they may be worried about those social consequences, and we can do fewer procedures … so, that’s a capacity impact,” he said.

Whether or not the Supreme Court blocks this ruling from going into effect, many abortion providers see it as a harbinger of what’s to come, even in states where abortion is protected.

“It feels so hypocritical for the court system to say we should … let states have absolute authority over what happens in their bounds … unless it’s convenient for us to rule in a way that would make abortion harder to access in states where abortion remains legal,” Wales said.

Wales said they’re navigating this uncertainty right alongside patients, many of whom are shocked to learn that this Texas court case is potentially having such wide-ranging consequences.

“It’s totally mystifying to patients,” she said. “They were already treated terribly by their state, by having their rights violated, and now they can’t even go to another state and potentially receive care because of something that happened in their home state.”

Disclosure: Planned Parenthood has been a financial supporter of The Texas Tribune, a nonprofit, nonpartisan news organization that is funded in part by donations from members, foundations and corporate sponsors. Financial supporters play no role in the Tribune's journalism. Find a complete list of them here.

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