The Use of Telemedicine During a Pandemic to Provide Access to Medication Abortion

Introduction

Annually, about half of all pregnancies in the United States are unplanned and half of these unintended pregnancies result in abortion.^[1] This amounts to about 1.3 million abortions each year.^[2] In 2017 alone, 18 percent of pregnancies resulted in an abortion.^[3] As of 2019, 29 states were categorized as “hostile” towards abortion rights, while only 14 states were categorized as “supportive.”^[4] Additionally, in the same year, 58 percent of women in the United States of reproductive age reported living in one of the 29 states categorized as “hostile,” while 35 percent of this population group reported living in one of the 14 states categorized as “supportive” of abortion rights.^[5] All to say that the topic of abortion, although controversial in nature for a multitude of reasons, affects the lives of a significant majority in the United States. As of 2020, pregnant women who wish to terminate their pregnancy have come down to only two options: (1) press that pause button on their umbilicus so that the blastocyst can wait until COVID-19 is over to form into an embryo; or (2) risk their life and go to an abortion clinic to pick up a pill that the FDA mandates must be dispensed in-person.^[6] At some point in a woman’s^[7] life, abortion may be an option to consider. Opposition to abortion is well documented in the United States and has been a part of our history for a very long time.^[8] Nevertheless, in Hellerstedt, the United States Supreme Court has made it very clear that regulations restricting or imposing an undue burden to access safe and legal abortions would be held unconstitutional.^[9] Today, once again, the Court is presented with an opportunity to hear an abortion case with a similar situation, in United States Food and Drug Administration v. American College of Obstetricians and Gynecologists [hereinafter ACOG]^[10], where it must decide whether the FDA’s “in-person” requirement to obtain the Mifepristone abortion pill^[11] is constitutional during the midst of a pandemic.^[12]

Access to abortion has been a controversial topic for a long time and the use of telemedicine could be the solution to an old problem.^[13] By allowing the use of telemedicine to consult with physicians and to understand how medication abortion works, the Court will give patients access to the resources they could otherwise receive only in-person.^[14] Through mail-orders, abortion patients can receive their medication via mail and the required physician counseling through telemedicine.^[15] The COVID-19 pandemic may have given rise to a novel solution for accessing abortion efficiently and effectively. Post pandemic, those individuals who seek an early abortion, but live in areas where abortion clinics are more than 100 miles away, including rural areas, can use telemedicine to go through the early abortion procedures.^[16] Easy access to early abortion will help eliminate many complications that women seeking abortion risk facing once they are in their second or third trimester of pregnancy.^[17]

This Note aims to analyze how, because of the recent technological advancements in telemedicine, the in-person requirement for abortion counseling and medication pick-up, whether it be during or after this pandemic, constitutes an undue burden on a woman’s constitutional right as described in Hellerstedt. This Note proceeds in five parts. Part I introduces the relevant background information. Part II will analyze abortion requirements prior to the COVID-19 pandemic and the FDA regulations governing safe patient access to the abortion pill, Mifepristone. Part III will begin with a discussion on how the Trump administration’s request for an in-person requirement to access abortion pills causes an undue burden on women seeking an abortion and will end with a discussion on what effect the change in the presidency will have on such access. Part IV will examine the practicality of telemedicine use for counseling and how the change in the Supreme Court may affect the Court’s future abortion-related rulings. This Note concludes that the in-person requirement creates an undue burden on a woman seeking an abortion and that the use of telemedicine allows for easy access to abortion care, both during and after the pandemic. Forcing a pregnant woman to continue an undesired pregnancy is not only illegal but also does not extend the purpose of the Court’s holding in Roe and Casey.

I. History of Abortion Rights in the United States

In a 1973 landmark case, Roe, the Supreme Court held that the United States Constitution protects a pregnant woman’s right to choose to have an abortion.^[18] However, this right is balanced with the government’s interest in protecting the woman’s health and the possibility of a human life.^[19] This decision was later reaffirmed in Casey, where the Court held that in addition to its findings in Roe, there is an additional standard that the government must meet when regulating abortion care without violating a woman’s constitutional right.^[20] This new standard seeks to determine whether the state abortion regulation has the purpose or effect of presenting a substantial obstacle to a woman seeking an abortion.^[21] Since then, states have regulated and limited when, where, and under what conditions a woman may obtain an abortion.^[22] As of November 1, 2020, 43 states reportedly prohibit abortions after a certain point in the pregnancy timeline.^[23] However, these regulations do not apply when the woman’s life or health is at risk.^[24]

A. Abortion Care in the Pre-COVID Era

Two requirements must be met before a woman can undergo an abortion: (1) going through an abortion counseling session and (2) waiting for a specified amount of time.^[25] Like many medical providers, abortion providers also have to provide their patients with information about their different options, with details regarding the procedure, and with any necessary information that the provider believes is important for the patient to know after assessing their health condition.^[26] Every state requires that a patient, undergoing any medical treatment, must provide informed consent to the procedure, which includes: (1) verifying that the patient has the capacity to make decisions pertaining to their care; (2) verifying that the decision made by the patient is voluntary; and (3) verifying that they are provided with adequate and appropriate information.^[27] However, these principles are sometimes not met due to abortion counseling requirements that provide misleading or irrelevant information.^[28]

The second requirement that must be fulfilled in order to undergo an abortion procedure is waiting for a specified time period.^[29] Many states require a complete 24-hour duration between the time a woman completes the counseling requirement and the time they undergo the abortion procedure.^[30] Women must go to the abortion clinic twice in some states that mandate women to come in person, rather than completing the counseling session virtually.^[31] The in-person counseling session and mandated wait time requirement often causes hardship for many women.^[32] In addition to these requirements, some states even require an ultrasound under specific guidelines before an abortion is sought.^[33]

In reality, pregnant women seeking an abortion have only two options: (1) undergo a medical abortion; or (2) go through a surgical abortion.^[34] The former involves the use of medication to end the pregnancy without any surgical component involved in this option.^[35] Mifepristone and Misoprostol are the two known abortion medication pills used to end a pregnancy.^[36] Each state and health center has its own regulations as to when and where a woman can take any one of these abortion pills.^[37] Irrespective of the location and time, the procedure is the same. The first part of the procedure is for the patient to take the Mifepristone pill, which blocks the body from producing progesterone, a hormone normally needed during pregnancy.^[38] The second step is to take the Misoprostol pill, either right away or up to 48 hours later, which causes cramping and allows the uterus to empty through bleeding.^[39] Experts assert that the effectiveness of the abortion pills depends on how far along a woman is in her pregnancy.^[40]

Mifepristone, also known as Mifeprex, was first approved by the U.S. Food & Drug Administration (FDA) in 2000.^[41] Sixteen years later, after the approval of a supplement application of Mifeprex, the FDA established that it was safe and effective to use Mifepristone to terminate a pregnancy.^[42] As part of the Risk Evaluation and Mitigation Strategy (REMS) drug safety program, the FDA established that REMS continued to be necessary for Mifeprex, because it ensured the safety of the users and ensured that the benefits of the medication outweighed its risks.^[43] There are four requirements for Mifeprex under the REMS program: (1) it must be ordered, prescribed and dispensed by a healthcare provider meeting certain qualifications; (2) the health care providers must have completed a Prescriber Agreement Form prior to ordering and dispensing the drug; (3) the drug is dispensed in a clinic, medical office, or hospital under the supervision of said healthcare provider; and (4) the healthcare provider must obtain a signed Patient Agreement Form before dispensing the drug.^[44] As required under FDA regulations, providers who prescribe Mifeprex must provide a copy of the Mifeprex Medication Guide to the patients.^[45] According to the FDA, the second pill, Misoprostol, causes heaving bleeding and, therefore, patients are allowed to take the pill at a location that is appropriate for them.^[46] However, the FDA does not specify where the patients must take the first pill, Mifepristone.^[47] This indicates that there is no strict requirement as to where any of these two drugs must be taken. Thus, it is clear that the drug needs to be dispensed at a specific location, as per the FDA guidelines, but, as of yet, there are not any guidelines specifying where it must be taken.^[48]

Mifepristone is among the most restricted drugs in the United States, which is what makes it so challenging to obtain.^[49] Mifepristone was found to have a better safety record than the commonly used Penicillin and Viagra.^[50] However, unlike those drugs, Mifepristone cannot be received at a pharmacy with a prescription due to the FDA’s tight restrictions on the drug.^[51] Opponents of medication abortion argue that Mifepristone is dangerous and seriously risks the lives of people.^[52] However, data indicates that there is no direct link between the abortion pill and higher risk of death.^[53] Furthermore, data collected by the FDA through the FDA Adverse Events Reporting System indicated that “in the past 20 years about 3.7 million women in the U.S. have had a medication abortion and 24 women have died between September 28, 2000 and December 31, 2018.”^[54] This would come down to about 6.5 deaths for every one million patients.^[55] Thus, the risk of death may not be as strong of an argument against loosening the restrictions imposed on Mifepristone as opponents of abortion care would hope.

B. Abortion Care in the Present Day

The termination of pregnancy is something that cannot be delayed.^[56] It is an essential procedure that must be commenced within a specific time frame to ensure the health and safety of the patient.^[57] The longer a pregnant woman waits to terminate the pregnancy, the higher the rate of complications.^[58] Mortality rates associated with abortions for the first eight weeks of gestation are 0.1 per 100,000 procedures; however, this increases significantly to 8.9 per 100,000 at 21 weeks and above.^[59]

Due to the coronavirus, abortions have been postponed.^[60] If this continues, there will, inherently, be a rise in late-term abortions and pregnancies, which will not only cause complications in a patient’s pregnancy, but also lead to a more intensive use of providers, resources, and protective equipment.^[61] Therefore, rather than limiting access to abortion clinics and other resources, such as telemedicine, states should be wary of using the pandemic as an excuse to further limit access to abortion procedures.

II. Changes to Abortion Care Due to the COVID-19 Pandemic

Due to the pandemic, more than one in three women have changed their fertility preference to wanting to delay having a child or limit future births.^[62] Although consistent use of contraceptives has increased, because of changes in fertility preferences and limited access to contraceptives, women will likely need access to abortion care more than ever before.^[63] Since the start of the pandemic, to help combat the spread of COVID-19, several states have either completely stopped or delayed allowing abortions.^[64] Yet, as of August 10, 2020, at least 11 states have attempted to restrict abortion access by deeming abortion as a non-essential service during the pandemic.^[65] This has caused confusion among patients and has forced some to drive hundreds of miles away to out-of-state health centers and leaving some with few, if any, other options.^[66] Arwa Mahdawi, a Guardian columnist and brand strategist based in New York, wrote:

There is nothing pro-life about exploiting an emergency to further a political agenda. There’s nothing pro-life about forcing women to give birth during a pandemic. There’s nothing pro-life about women having to put themselves in danger to get the help they need, and the services the [C]onstitution is supposed to protect. But, as has always been clear, anti-abortion fanatics don’t care about “life”, they care about control.^[67]

Governors in several states, including Texas, Louisiana, Mississippi, Oklahoma, and Alabama have halted both medication and surgical abortions.^[68] On the other hand, governors in other states have stopped only surgical abortions, while other states have announced their intention to place similar restrictions on patients.^[69] These type of abortion bans have created new barriers between a pregnant woman and her access to abortion services. The President of the American Medical Association (AMA), Patrice Harris, issued a statement on March 30, 2020, explaining that physicians, not politicians, should be the ones to determine what procedures are urgent and which ones can be delayed.^[70]

With limited access to in-person health care and sexual and reproductive health services, women are avoiding other available services due to the fear of exposing themselves and their families to the virus.^[71] Based on a national internet-based survey conducted by the Guttmacher Institute between the weeks of April 30, 2020, and May 6, 2020: (1) one in three women reported that they chose to delay or cancel visiting a health care provider for sexual and reproductive health care due to the pandemic^[72]; (2) barriers to timely care were more prevalent among Black^[73] and Hispanic^[74] women as compared to among White^[75] women; (3) barriers to timely care were more prevalent among queer women^[76] than among straight women^[77]; (4) lower-income women,^[78] compared to higher-income women,^[79] were more likely to report delays and obstacles to obtaining sexual and reproductive health care due to the pandemic.

However, telemedicine is an effective method in filling gaps in access for patients by healthcare providers during the pandemic.^[80] Telemedicine abortion is the use of videoconferencing and telephone consultations to administer medical abortions and to supervise the use of abortion pills to terminate the pregnancy.^[81] Although abortion care was already restricted, the pandemic has significantly increased the number of restrictions imposed on patients seeking abortions.^[82] Therefore the expansion of telehealth and the growth in the use of medication abortion has helped eliminate some of the barriers that pregnant women experience when seeking access to abortion services safely and privately.^[83] However, there have been significant barriers imposed to telehealth abortions in some states. Currently, 33 states are allowed to dispense Mifepristone pills through a licensed physician, while 17 states and the District of Columbia permit other practitioners, such as nurses, physician assistants, or nurse-midwives, to dispense abortion pills.^[84] This type of barrier limits the reach of telehealth abortion in that patients are severely restricted as to how, from whom, and when they can receive their abortion pills. Another barrier is the FDA regulation that blocks access to Mifepristone unless distribution is done in accordance with the REMS program.^[85] Some advocates have challenged the FDA’s REMS restriction on the abortion pill, especially in light of the COVID-19 pandemic.^[86] Pregnant women have an urgent need for access to high-quality care in the safety of their own home, rather than be forced to expose themselves to unnecessary risk.

In ACOG, the United States District Court of Maryland approved a preliminary injunction barring the FDA from enforcing a regulation during the pandemic which required pregnant women to visit an abortion facility to obtain Mifepristone and terminate their abortion.^[87] Various organizations collaborated and brought this action against the FDA, the FDA Commissioner, the Department of Health and Human Services (HHS), and the HHS Secretary, to challenge enforcement during the pandemic of the FDA in-person dispensing and signature requirements for Mifepristone, arguing that COVID-19 presents challenges to patients fulfilling the in-person requirement in order to obtain a medication abortion and this challenge can be overcome through the use of telemedicine.^[88] After defining medical abortion and analyzing the FDA regulation, the court looked at the seriousness of the pandemic, emphasizing that all 50 states have declared a state emergency or public health emergency, issued stay at home orders, put restrictions on business and restaurants, and limited social gatherings.^[89] The court noted that:

[M]any individuals infected with the coronavirus lack symptoms and the disease currently lacks an effective vaccine, it is exceedingly difficult to control its spread. Since the first confirmed case of COVID-19 was reported in the United States in late January 2020, the Centers for Disease Control and Prevention, a component of HHS, has reported that there have been over three million cases of COVID-19, and over 130,000 deaths, across the nation … [D]uring July 2020, new cases per day have surpassed 44,000 each day so far this month.^[90]

The court found that in light of the pandemic, the in-person requirement places a substantial obstacle in the path of women who are seeking to medically induce their abortion and that this requirement may delay the abortion process and may necessitate a more invasive procedure, infringing on a woman’s constitutional right to an abortion.^[91] Additionally, the court explained that, in light of the limited timeframe that an abortion seeking pregnant woman works with, such infringements on the right to an abortion would account for irreparable harm.^[92] As the court explained:

In a recent case challenging a state restriction on elective surgeries during the COVID-19 pandemic as infringing on the constitutional right to an abortion, the United States Court of Appeals for the Sixth Circuit found likely irreparable harm because a woman seeking an abortion during the pandemic stood ‘at risk of losing her constitutional rights or at least of incurring substantial physical, emotional, and financial harms en route to exercising those rights,’ such that it was 'not a case that can be remedied with money damages, or a post-hoc apology.^[93]

The court acknowledged that the undue burdens standard has consistently been reaffirmed in cases with the most recent being on June 29, 2020, in June Medical Services.^[94] As to the undue burden standard in this case, the court concluded two things:

First, the federal government’s general acknowledgment of the difficulty of traveling to medical offices as reflected in its waiver of several in-person requirements, the challenges caused by medical office closures and limited capacity, the heightened health risk that many abortion patients face due to demographic characteristics, the particularize risk and challenges associated with transportation to get to such offices, the greater difficulty of securing childcare under present conditions, and the impact of the economic downturn on the ability of patients to secure transportation and childcare…combine to render an in-person visit to pick up medication and sign forms particularly burdensome and dangerous during the pandemic. A combination of such barriers can establish a substantial obstacle.

Second, these barriers, in combination, delay abortion patients from receiving a medication abortion, which can either increase the health risk to them or, in light of the ten-week limit on the Mifepristone-Misoprostol Regimen, prevent them from receiving a medication abortion at all.^[95]

Witnesses who testified in this case indicated what type of challenges COVID-19 presents to patients. Dr. Paladine testified that, because of the pandemic, often times medical offices and abortion clinics would either be closed completely or remain open with a significant reduction in available appointments.^[96] Therefore, visits to obtain Mifepristone would be either delayed or stopped, thereby limiting the availability of in-person abortion care.^[97] Likewise, Dr. MacNaugton testified that the pandemic has caused the hospital system, where she is employed, to close all but three primary care clinics.^[98] This has caused health care professionals to refer abortion or miscarriage patients to family planning clinics in order to receive Mifepristone.^[99] However those clinics had their own limited hours of operation and, thus, this further limited a patient’s access to the abortion pill.^[100] The court noted that based on the testimony of these physicians, telemedicine can be used to safely meet the REMS requirements of assessing the abortion patient’s eligibility, of providing counseling and reviewing the Patient Agreement Form, and of acquiring the patient’s signature on that form without having to meet in person with the patient.^[101] It was also noted that Mifepristone could be ordered and delivered to the patient safely and promptly after the signing of the Patient Agreement Form and that the use of telemedicine would help eliminate some of the challenges that the in-person requirement was causing.^[102] The U.S. Court of Appeals for the Fourth Circuit granted the motion to dismiss in a consolidated appeal.^[103] Thus, at least for now, the nation’s court system sides with the advocates of abortion care and recognizes the barriers imposed on patients due to the pandemic. Will this ruling stand in the near future? That has yet to be seen.

III. Abortion Care vs. The Trump Administration

A. The Trump Administration’s View on Abortion Rights

Many politicians have used the pandemic as a justification to implement even more restrictions on abortion access.^[104] After the lower court’s decision to block the FDA’s in-person requirement during the pandemic, the Trump administration asked SCOTUS to reverse the decision and to enforce the FDA regulation requiring abortion patients to visit healthcare providers in order to receive the abortion pill.^[105] Solicitor General Jeffrey Wall stated:

Given that surgical methods of abortion remain widely available, the enforcement of longstanding safety requirements for a medication abortion during the first ten weeks of pregnancy does not constitute a substantial obstacle to abortion access, even if the COVID-19 pandemic has made obtaining any method of abortion in person somewhat risker.^[106]

It could be argued that Solicitor General Wall’s argument is contradictory in nature because his statement emphasizes that physically going to the healthcare provider, whether it be for medication or surgically induced abortion, still poses a risk of contracting COVID-19. Limiting a woman’s access to a certain procedure, such as access to medical abortion, and forcing them to induce their abortion surgically is, in itself, a substantial obstacle. This would mean that abortion patients only have two options: (1) either pause their pregnancy^[107] or (2) undergo a surgical abortion, which is a much more invasive procedure.^[108] The last time I checked, pausing a woman’s pregnancy was not possible.

The American Civil Liberties Union (ACLU) countered the Trump administration’s request by arguing that the requirement jeopardizes the safety of patients, clinicians, and the public, while providing “no countervailing benefit – and with particularly severe implications for low-income people and people of color.”^[109] Likewise, another advocacy group posted on Twitter: “Black, Brown, Indigenous people of color are already dying/getting sick at disproportionate rates from COVID-19. The Trump-Pence administration tried to make this worse by asking SCOTUS to require people face unnecessary risk just to get abortion care.”^[110] Similar statistics were cited to by the lower court in ACOG, where, as discussed above, the Judge approved the preliminary injunction.^[111]

Gynuity Health Projects is a nonprofit reproductive health organization that sponsors a project called the TelAbortion Study, which uses telemedicine to provide medical abortion and delivers abortion pills through the mail to patients.^[112] Since 2016, the TelAbortion Study has served 13 states, including the District of Columbia, two of which – Illinois and Maryland – joined as the pandemic was on the rise.^[113] Elizabeth Raymond, the Senior Medical Associate at Gynuity Health Projects, confirmed that, “as of April 22, the program mailed 841 packages containing abortion medications, with 611 patients completing the procedure. Another 216 participants were either in the follow-up process or did not yet confirm their results.”^[114] Gynuity Health reported that 95 percent of the participants that took part in the TelAbortion Study completed their abortion successfully without having surgery, and the overall satisfaction has been high among patients and providers.^[115] Rather than using the success rate from this study to expand the use of telemedicine and mail orders for abortion pills, many GOP senators have proposed legislation to prohibit telemedicine abortion.^[116] The data presented in this discussion indicates that patients can be counseled through telemedicine on the procedures of medical abortion and can safely receive and induce medical abortion within the comfort of their home and, more importantly, without the unnecessary risk of contracting the coronavirus.

On October 8, 2020, the Supreme Court declined the Trump administration’s request to require women to comply with the FDA in-person requirement to receive Mifepristone.^[117] Two of the noted conservative justices on the Supreme Court, Justice Alito and Justice Thomas, dissented on the Supreme Court’s decision and stated, “While COVID-19 has provided the ground for restrictions on First Amendment rights, the District Court saw the pandemic as a ground for expanding the abortion right recognized in Roe v. Wade.”^[118] Medication abortion can safely be used up to ten weeks after the first day of an individual’s last period.^[119] Then medical abortion is out of question and suction or surgical abortion become the only options.^[120] This could become even more complicated in light of balancing the possible state interest in the fetus at this point in the pregnancy. Therefore, the pandemic was not an “excuse” to expand abortion rights. Rather it was the right time to provide access and support to those who already face challenges on regular days to seek proper abortion care.

After the U.S. Court of Appeals for the Fourth Circuit refused to reverse the lower court’s decision, Solicitor General Wall took this case to the Supreme Court.^[121] In response, the Supreme Court directed the lower court to “promptly consider a motion by the Government to dissolve, modify, or stay the injunction, including on the ground that relevant circumstances have changed.”^[122] As of December 9, 2020, the lower court concluded that:

As the parties continue their ongoing dispute over the validity of the Preliminary Injunction and whether it should presently remain in effect, the Court notes that it is not open-ended. The Preliminary Injunction is slated to end 30 days after the end of the public health emergency declared by the Secretary. With the positive news relating to vaccines, there is reason to hope that day will come soon. At this time, however, as the entire nation goes through what the Coordinator of the White House Coronavirus Task Force has deemed the ‘most deadly phase of the pandemic,’ the Court concludes that Defendants have not identified changed circumstances sufficient to warrant a stay or dissolution of the Preliminary Injunction, in whole or in part.^[123]

Therefore, the Court denied the FDA’s Renewed Motion to Stay the Preliminary Injunction and for an Indicative Ruling Dissolving the Preliminary Injunction.^[124] As of December 22, 2020, both parties have submitted supplemental briefs to the Supreme Court.^[125]

B. Effects of the Change in Presidency

During President Donald Trump’s administration, severe restrictions have been imposed on health care access, reproduction rights, and civil rights for targeted groups.^[126] During his campaign, Trump stated that women who undergo illegal abortions should be subject to “some sort of punishment.”^[127] However, with the recent change in administration, it is likely that the President Joe Biden will push the future of reproductive health and abortion rights to the forefront of the administration’s agenda.^[128] During his campaign, Biden proposed to codify Roe and to work with his Justice Department to stop the “rash of state laws that so blatantly violate” Roe.^[129] Since Biden has taken office, he has worked to reverse some of the abortion access restrictions that Trump had imposed.^[130] Another action President Biden can take is to appoint an FDA Commissioner who would initiate an administrative process to permanently repeal the restrictions put on the medication abortion drug Mifepristone.^[131] This would significantly open up access for women who are seeking abortion from the safety of their homes regardless of how far they are from an abortion clinic.

IV. Access to Abortion Care in the Post-COVID-19 Era

Globally, the COVID-19 pandemic has restricted abortion care access.^[132] Telehealth is changing how patients access health information and services all around the world and, more specifically, in the United States, where pregnant women can access abortion in some states through telehealth.^[133] However, other states that have wide gaps in access or have abortion clinics located at a distance can use telemedicine to provide access to medication abortion to pregnant women.^[134] During and after the COVID-19 pandemic, telehealth can help expand abortion care in remote and underserved communities.^[135]

A. Telemedicine Can Allow Access to Abortion Care in Small Towns

Even after the pandemic, telemedicine can be used to improve healthcare access for individuals that are geographically restricted from accessing high-quality care.^[136] One type of geographic restriction can be transportation, which restricts how far an individual can travel for services.^[137] According to the Guttmacher Institute, “89 percent of US counties don’t have any abortion providers. Getting an abortion can be expensive, time-consuming, and emotionally draining even when there’s a clinic nearby. Long-distance travel only compounds existing hurdles and makes safe, affordable abortions less accessible for more women.”^[138]

There is compelling evidence that suggests that the use of telemedicine for medical abortion is just as safe as in-person care.^[139] Melissa Grant, the Chief Operating Officer of Carafem, a national abortion and birth control clinic, said: “What we’ve noticed since the pandemic started, is that it ultimately became even more challenging for people to travel . . . some patients faced new childcare barriers or economic strain, and all of those things together increased the number of people looking at this option.”^[140] One way to effectively eliminate barriers, such as transportation and childcare, would be to use telemedicine when inducing medical abortion. Those women who are only ten weeks or less into their pregnancy will likely have a good opportunity for early termination and the procedure will be more efficient and less risky during the pandemic. Notably, post-pandemic, the geographical challenges and childcare challenges will remain present in the lives of patients seeking an abortion. Therefore, telemedicine can effectively be used to make the abortion process more accessible for patients.

Additionally, Grant goes on to say that “[n]ecessity oftentimes breeds innovation. Abortion doesn’t stop being a necessity because of things going on in the world around it.”^[141] This argument goes back to what Justice Alito stated regarding the Court standing by silently while officials were imposing restrictions on religious activities and limiting individual’s first amendment rights by restricting their speech, protests, lectures, and rallies.^[142] Grant’s argument nullifies Justice Alito’s argument by indicating how crucial abortion is. Abortion has become necessary, regardless of the state of affairs. By contrast, protesting and rallying during the midst of a pandemic is not a necessity and is something that can be prevented because it is not life-threatening and there are other means of getting the message across. However, when it comes to abortion, there are only two ways in which the objective of an abortion can be achieved: medical abortion or surgical abortion.^[143]

In ACOG, the court provides numerous statistics that support the use of telemedicine in abortion care.^[144] The court noted that, with state restrictions on the closure of nonessential businesses:

even if healthcare facilities are open, abortion patients face particular challenges in traveling for in-person appointments during the pandemic, many of which arise because 60 percent of women obtaining abortion care are poor people of color and 75 percent come from low-income backgrounds. As noted by Dr. Reingold, the health risks from exposure are particularly amplified in communities of color, where individuals are suffering higher rates of serious illness and death from COVID-19.^[145]

These statistics remain true after the pandemic ends.^[146] The percent of women obtaining an abortion who are also people of color and poor, or are from a low-income background, will likely remain the same even after the pandemic ends.^[147]

Furthermore, the court noted that it is more difficult for individuals from these communities to secure transportation to the abortion clinics.^[148] The transportation barrier is not one that only exists because of the COVID-19 pandemic.^[149] Transportation problems within these communities are there and are likely to continue to exist. Therefore, the use of telemedicine can be used to eliminate those barriers and provide equal and fair access to abortion care.

Expanding the use of telemedicine for abortion has been proven to provide safe, high-quality abortion care in many states.^[150] Right now, states that allow telemedicine abortions are able to reduce the risk of patients contracting or spreading the coronavirus when seeking an abortion.^[151] States will likely take steps to remove unnecessary abortion restrictions by allowing “patients to access medication abortion care safely at home through telemedicine.”^[152] This will solve some of the challenges that many patients face when seeking an abortion, but will also serve as a safe, and perhaps more convenient, form of abortion care.

B. The Effect of the Changing Supreme Court on Abortion Rights

With the death of Justice Ginsburg and a shift to a 6-3 conservative majority on the Supreme Court, abortion rights are at the forefront of many discussions.^[153] As of right now, the last decision the Supreme Court made on ACOG was on January 12, 2021, when it decided to grant the application for stay.^[154] However, if this case is appealed to the Supreme Court and review is granted, then understanding how each Justice may rule on such a case is critical in understanding how abortion rights may be impacted.^[155] The change on the Court can result in three possible holdings: (1) the court may limit legal standing to challenge abortion regulations;^[156] (2) the court may overturn Roe;^[157] and (3) the court may develop a new legal standard for evaluating abortion regulations.^[158] If the conservative majority decides to limit abortion rights, then there is an even stronger argument for using telehealth to help providers expand the capacity and reach of their services for those seeking abortion care.^[159] This discussion would be incomplete with a cursory examination of the Court’s current standing on the subject of abortion rights.

1. Chief Justice Roberts’ View on Abortion Rights

After 15 years of leading the Supreme Court, Roberts’ unpredictability in deciding the court’s most contentious cases has led him to become a significant influential figure in the American judicial system.^[160] Roberts, a conservative who consistently votes to uphold abortion restrictions,^[161] sided with the Court’s liberals in the recent June Medical case, ruling 5-4 to strike down a Louisiana abortion restriction that required providers to have admitting privileges from a nearby hospital.^[162] Conservatives were concerned with Roberts’ incremental approach.^[163] However, even though he sided with the court’s four liberals, in a concurring opinion, Roberts left the possibility open for other states to place similar abortion restrictions.^[164] In a footnote, Roberts wrote that the “validity of admitting privileges law depend[s] on numerous factors that may differ from state to state.”^[165] Roberts’ analysis in June Medical “could have a variety of implications on both pending and future decisions on abortion cases, and even future restrictions that states look to advance.”^[166] He starts his concurrence in June Medical by expressing that he continues to believe that the Court’s decision in Whole Woman’s Health was “wrongly decided.”^[167] He further notes that “neither parties have asked us to reassess the constitutional validity”^[168] of the decision reached in Casey, hinting that “if future litigants directly attack Casey, Roberts will welcome such a challenge.”^[169] However, Roberts has a history of honoring the Court’s past decisions – the legal doctrine of stare decisis – as evidenced by his vote in “finding that federal anti-discrimination law protects gay, bisexual and transgender workers” and prohibiting President Trump “from ending the federal program that protects undocumented immigrants brought here as children.”^[170] Although Roberts was the fifth vote in June Medical, we may not see the same result if ACOG is reviewed by the Court. In June Medical, Roberts likely sided with the liberals because he was “motivated by respect for the precedent that the Court had set in an almost identical case just four years earlier when the swing Justice Anthony Kennedy was still on the bench.”^[171] In January 2021, the Chief Justice concurred in granting the application for stay on the nationwide injunction by reasoning that the District Court does not have "a sufficient basis…to compel the FDA to alter the regimen for medical abortion.^[172] Knowing Roberts’ antipathy for abortion,^[173] it is likely that if this case is granted review by the Supreme Court, he will vote for FDA’s in-person medication abortion requirement.

2. Justice Thomas’ View on Abortion Rights

Thomas’ view on abortion^[174] are best explained through his dissent in June Medical.^[175] Thomas believes that the Court needs to reexamine its precedent on abortion because the Court’s abortion jurisprudence has “spiraled out of control.”^[176] In his dissent in June Medical he writes that “[o]ur abortion precedents are grievously wrong and should be overruled . . . . More specifically, the idea that the Framers of the Fourteenth Amendment understood the Due Process Clause to protect a right to abortion is farcical . . . . Because we can reconcile neither Roe nor its progeny with the text of our Constitution, those decisions should be overruled.”^[177] He concluded his dissent by writing that the Court has “neither jurisdiction nor constitutional authority to declare Louisiana’s duly enacted law unconstitutional.”^[178] Additionally, about two years ago, Thomas shared similar views about abortion in his concurrence in Box,^[179] where he made a comparison between abortion and the eugenics movement.^[180] Referring to the law in question, he wrote that laws like these “promote a State’s compelling interest in preventing abortion from becoming a tool of modern-day eugenics.”^[181] He argued that the “government should limit what a woman wants to do with her body on the basis that abortion and birth control are both part of the same state-sanctioned eugenics plot to keep those with ‘inferior’ traits from being born.”^[182] Thomas’s twenty-page concurrence attacked many women who obtain abortions as “callous and bigoted child-killers.”^[183] He further notes that “from the beginning, birth control and abortion were promoted as means of effectuating eugenics.”^[184] Based on Thomas’ rulings on abortion-related cases in the past few years, it is likely that he will side with his conservative colleagues and vote for the FDA’s in-person requirement, assuming ACOG is granted review by the Court.

3. Justice Breyer’s View on Abortion Rights

When asked about abortion during his confirmation hearing in 2005, Breyer stated that the finding in Roe is “settled law.”^[185] Breyer’s opposition to overruling prior precedent is demonstrated in his dissent in Hyatt, where he wrote that “the law can retain the necessary stability only if this Court resists that temptation, overruling prior precedent only when the circumstances demand it.”^[186] More specifically relating to abortion, in 2016, Breyer authored an opinion for the majority in Whole Woman’s Health in which he said that “when a state offers a health justification for an abortion regulation that limits access, courts must scrutinize with care the evidence underlying the state’s claim, balancing the benefits to be derived from the regulation against the burdens it imposed.”^[187] In 2020, Breyer wrote a forty-page opinion,^[188] in June Medical, in which he noted that the Louisiana law in question is “almost word-for-word identical” to the Texas admitting-privileges law at issue in Whole Woman’s Health.^[189] And, therefore, he argued, that the Court must reach the same conclusion as it did in Whole Woman’s Health and strike down the Louisiana law.^[190]

Based on Breyer’s rulings in many of the abortion cases during his tenure on the Court and his most recent decision to deny the application for stay of the preliminary injunction in the ACOG case, if ACOG is reviewed by the Court, it is likely that Breyer will cast his vote to prevent the FDA from enforcing the in-person requirement for medication abortion drug Mifepristone during the pandemic.

4. Justice Alito’s View on Abortion Rights

Alito made clear his views on abortion back in 1985 while working as a Justice Department lawyer,^[191] when he wrote in a memo that “[t]he Constitution does not protect a right to an abortion.”^[192] As a judge on the U.S. Court of Appeals for the Third Circuit, in 1991, Alito wrote a dissent in Casey regarding the spousal notification provision, arguing that the plaintiff’s did not present enough evidence to establish that a notification requirement to husbands would cause an undue burden on women seeking abortions,^[193] therefore arguing that women should be required to notify their husbands before having an abortion.^[194]

Although Alito’s record on abortion cases seems to be one-sided,^[195] in 2000, he helped overturn a New Jersey ban on a surgical abortion procedure called “partial-birth abortion.”^[196] Furthermore, during his confirmation hearing in 2006, Alito repeatedly stated that the finding in Roe was one to respect, however he refused to call Roe “settled law.”^[197] Alito also stated that,

[t]oday, if the issue were to come before me, if I am fortunate enough to be confirmed and the issue were to come before me, the first question would be the question that we’ve been discussing, and that’s the issue of stare decisis . . . and if the analysis were to get beyond that point, then I would approach the question with an open mind and I would listen to the arguments that were made.^[198]

More recently, in 2020, Alito was joined by his conservative colleagues, Justices Gorsuch, Thomas, and Kavanaugh in writing a dissent in June Medical, arguing that although the Texas law at issue in Whole Woman’s Health was largely the same as the Louisiana law at issue in June Medical, the cases themselves are different and, therefore, stare decisis does not apply.^[199] In addition, he argued that the Court in Whole Woman’s Health misinterpreted precedent and, thus, it should be overruled and the Court, when deciding June Medical, should not rely on it.^[200]

After careful consideration of Alito’s earlier work and rulings, it is likely that, if ACOG is reviewed by the Court, he would cast his vote for the FDA in-person requirement.

5. Justice Sotomayor’s View on Abortion Rights

In 2009, Sotomayor, in her confirmation hearing, when asked about her views on abortion and limited judicial record on abortion rights,^[201] stated that “it has been a part of the Court’s jurisprudence and a part of its precedents. Those precedents must be given deference in any situation that arises before the court.”^[202] Sotomayor’s position on abortion was clear when she joined the majority—Justices Breyer, Kennedy, Ginsburg, Sotomayor, and Kagan—in Whole Woman’s Health to strike down a Texas law imposing an undue burden on women seeking abortions by mandating abortion providers to have admitting privileges at a hospital nearby.^[203] In 2020, Sotomayor again joined the majority in June Medical to hold a Louisiana law, on admitting privileges requirements, unconstitutional because it imposed an undue burden on a woman’s constitutional right to choose to have an abortion.^[204] In 2021, Sotomayor wrote a dissent from Chief Justice Robert’s decision to grant application for stay in the ACOG case.^[205] She wrote that the FDA’s in-person requirement to access Mifepristone during the pandemic “imposes an unnecessary, irrational, and unjustifiable undue burden on women seeking to exercise their right to choose.”^[206]

Based on Sotomayor’s rulings on abortion-related cases, if the Court reviews ACOG, it is likely that Sotomayor will be against the FDA in-person requirement for the medical abortion drug Mifepristone.

6. Justice Kagan’s View on Abortion Rights

Until 2010, Kagan’s record on abortion was thin because she had never spoken or written publicly about her views as to whether abortion is ethical or constitutional.^[207] Kagan’s work as a lawyer in the Clinton White House from 1995-1999 indicates a pragmatic approach to the issue of late-term abortion.^[208] Kagan and Bruce Reed, her boss at the Office of Domestic Policy, wrote a memo urging President Clinton to support a compromise bill that would prohibit late-term abortions unless it negatively affected the health of a pregnant woman.^[209] Later in 2016, during the arguments in Whole Woman’s Health, Kagan commented that “liposuction is 30 times more dangerous, yet doesn’t have the same kinds of requirements [as abortion].”^[210] Kagan sided with the liberal majority in Whole Woman’s Health to strike down a Texas law that required abortion providers to have admitting privileges at a hospital nearby.^[211] Furthermore, her views on abortion were again reaffirmed when she sided with the majority in June Medical to block a Louisiana law^[212] that would have resulted in the state having only one doctor, in a single clinic, authorized to provide abortions.^[213] More recently, in 2021, she joined Justice Sotomayor in her dissent from the grant of application for stay in the ACOG case.^[214]

Based on Kagan’s record on abortion-related cases, if ACOG is reviewed by the Court, it is likely that she will side with the liberals on the Court in ruling against the FDA in-person requirement for the medical abortion drug Mifepristone.

7. Justice Gorsuch’s View on Abortion Rights

As of 2017, Gorsuch had never explicitly ruled on an abortion case during his tenure on the Court of Appeals for the Tenth Circuit.^[215] June Medical was the first major abortion case the Court heard since Gorsuch’s appointment to the bench.^[216] In June Medical, Gorsuch joined his conservative colleagues, in a dissent written by Justice Alito, to rule in favor of a Louisiana law that required abortion providers to have admitting privileges with a nearby hospital.^[217] Additionally, Gorsuch wrote his own lengthy dissent, which begins by stating that Roe is not an issue in the case, and that “the real question we face concerns our willingness to follow the traditional constraints of the judicial process when a case touching on abortion enters the courtroom.”^[218] He further tried to distinguish the Louisiana law in question with an almost identical Texas law in Whole Woman’s Health.^[219] In his dissent, Gorsuch “exaggerates the danger of abortion and places [himself] farther along the anti-abortion spectrum than many suspected.”^[220]

Gorsuch’s record sheds some light on his views pertaining to abortion and based on this record it is likely that, if the Court hears ACOG, Gorsuch will cast his vote for the FDA in-person requirement for the medication abortion drug Mifepristone.

8. Justice Kavanaugh’s View on Abortion Rights

During his tenure on the Court of Appeals for the District of Colombia Circuit, Kavanaugh leaned primarily towards the conservative legal movement.^[221] Judge Kavanaugh has been noted as typically leaning towards a conservative philosophy and frequently favoring government rights over individual rights.^[222] During his confirmation hearing in 2018, when asked about his views on Roe, he stated:

[I]t’s settled as a precedent of the Supreme Court entitled the respect under principles stare decisis . . . and one of the important things to keep in mind about Roe v. Wade is that it has been reaffirmed many times over the past 45 years, as you know, and most prominently, most importantly reaffirmed in Planned Parenthood versus Casey in 1992.^[223]

Similar to the situation with Justice Gorsuch, June Medical was the first major abortion case the Court heard since Kavanaugh joined the court.^[224] Kavanaugh’s views on abortion rights can be understood by his vote to uphold the Louisiana law in June Medical and in his dissent justifying his ruling.^[225] Kavanaugh’s dissent is seen as a clear sign that he is determined to overturn Roe.^[226]

Based on Kavanaugh’s judicial record it is likely that, if ACOG is heard by the Court, he will side with his conservative colleagues to rule for the FDA in-person requirement for the medical abortion drug Mifepristone.

9. Justice Barrett’s View on Abortion Rights

Abortion is one of the most controversial topics in the United States.^[227] In recent years, right-wing opposition towards abortion has been the driving force behind Republicans prioritizing SCOTUS judicial appointments.^[228] With Barrett filling the vacant seat on the Court, after the death of Ginsburg, there is much discussion on how the solid 6-3 conservative majority will rule on key issues, such as abortion rights, guns, and healthcare.^[229] Although Barrett has not made any direct rulings on abortion rights during her tenure on the Seventh U.S. Circuit Court of Appeals, she has cast two dissenting votes suggesting that the Constitution should be read to give states more leeway in abortion regulations.^[230] Therefore, it is likely that if ACOG is reviewed by the Court, then Barrett will vote for the FDA in-person requirement to access Mifepristone.

Conclusion

Due to the risks associated with the drug, Mifepristone, the FDA has tightly regulated its use in abortion care and has only allowed patients access to it at either a clinic, physician’s office, or hospital.^[231] During the midst of a global pandemic, the use of telemedicine in the medical field has become widespread, including in the field of abortion care.^[232] Scientific research and data support the assertion that telemedicine is a safe and feasible option to deliver high-quality abortion care.^[233] Therefore, even after the pandemic, telemedicine can and should be used to reach those individuals who are seeking abortion care in small towns or areas where access to an abortion clinic is limited. Although recent political changes provide abortion rights advocates hope for more accessible abortion care in the near future, the change on the Supreme Court provides opponents hope that the Court will likely uphold restrictions on accessing abortion care.^[234]

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1. Susan Dudley, Women Who Have Abortions, Nat’l Abortion Fed’n, https://prochoice.org/wp-content/uploads/women_who_have_abortions.pdf (last visited Jan. 12, 2021) (citing Facts in Brief - Induced Abortion, Guttmacher Inst. (2003), http://www.agi-usa.org/pubs/fb_induced_abortion.html).

2. Id. (citing Lawrence Finer & Stanley Henshaw, Abortion Incidence and Services in the United States in 2000, 35 Perspectives on Sexual & Reproductive Health 6-15 (2003)).

3. Induced Abortion in the United States, Guttmacher Inst., https://www.guttmacher.org/fact-sheet/induced-abortion-united-states# (last visited Jan. 12, 2021) (citing Rachel Jones et al., Abortion Incidence and Service Availability in the United States, 2017, Guttmacher Inst. (Sept. 2019), https://www.guttmacher.org/report/abortion-incidence-service-availability-us-2017).

4. Id. (citing State Abortion Policy Landscape: From Hostile to Supportive, Alan Guttmacher Inst. (Aug. 2019), https://www.guttmacher.org/article/2018/12/state-abortion-policy-landscape-hostile-supportive).

5. Id.

6. Mifeprex (Mifepristone) Information, FDA, https://www.fda.gov/drugs/postmarket-drug-safety-information-patients-and-providers/mifeprex-mifepristone-information (last visited Jan. 12, 2020).

7. Majority of the people who seek access to abortion services identify themselves as women. Thus, this Note refers to those seeking abortion care as women for the sake of clarity and consistency. Elizabeth Chloe Romanis & Jordan A. Parsons, Legal and Policy Responses to the Delivery of Abortion Care During COVID-19, 151 Int’l J. of Gynecology & Obstetrics 479 (2020).

8. Lauren Maclvor Thompson, Women Have Always Had Abortions, N.Y. Times (Dec. 13, 2019), https://www.nytimes.com/interactive/2019/12/13/opinion/sunday/abortion-history-women.html.

9. Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292, 2309 (2016).

10. Food & Drug Admin. v. Am. Coll. of Obstetricians & Gynecologists, 2021 WL 99362 (U.S. Jan. 12, 2021) (No. 20A34).

11. To undergo a medication abortion there are two pills that need to be taken. The first pill is called Mifepristone and the second pill is called Misoprostol. Misoprostol is either taken right away or up to 48 hours after taking Mifepristone. Mifepristone stops the pregnancy from growing, while misoprostol causes cramping and bleeding to empty the uterus. How Does Abortion Pill Work? Planned Parenthood, https://www.plannedparenthood.org/learn/abortion/the-abortion-pill/how-does-the-abortion-pill-work (last visited Jan. 10, 2021).

12. On January 12, 2021, The Supreme Court granted an application for stay pending disposition of the appeal in the United States Court of Appeals for the Fourth Circuit and disposition of the petition for a writ of certiorari. Food & Drug Admin. v. Am. Coll. of Obstetricians & Gynecologists, 2021 WL 99362 (U.S. Jan. 12, 2021) (No. 20A34).

13. Planned Parenthood Releases New Educational Video on Telemedicine Abortion, Planned Parenthood (Feb. 6, 2018), https://www.plannedparenthood.org/about-us/newsroom/press-releases/planned-parenthood-releases-new-educational-video-on-telemedicine-abortion (noting that Dr. Raegan McDonald-Mosley, the Chief Medical Officer at Planned Parenthood of Maryland stated in a video that “we want as many people as possible to understand that medication abortion via telemedicine is a safe and effective way of ending a pregnancy, and that the same quality of care is provided as when the provider is in the health center with the patient”); see also Mariana Prandini Assis & Sara Larrea, Why Self-Managed Abortion is so Much More than a Provisional Solution for Times of Pandemic, 28 Sexual and Reproductive Health Matters 37 (noting that unlike the United States, a few countries have acknowledged that abortion is an essential health service and have shifted to telemedicine to secure access during the pandemic. The United Kingdom adopted new guidelines that allows pregnant women seeking pregnancy care or abortion can do so through telemedicine by receiving consultation with a register medical practitioner, receiving the pills (mifepristone and misoprostol) by mail, and using them at home); Rachel Z. Arndt, Telemedicine Regulations Tighten Restrictions on Medication Abortion, Modern Healthcare (Dec. 19, 2018, 12:00 AM), https://www.modernhealthcare.com/article/20181219/NEWS/181219888/telemedicine-regulations-tighten-restrictions-on-medication-abortion (stating that proponents of telemedicine medication abortion say that the benefit is “similar to the benefit of any service provided virtually: increased access. Especially in rural areas, patients seeking abortions could benefit from abortions from medications prescribed after virtual visits with providers, much as other patients in rural area benefit from telemedicine visits for other healthcare needs”).

14. Food & Drug Admin. v. Am. Coll. of Obstetricians & Gynecologists, 2021 WL 99362 (U.S. Jan. 12, 2021) (No. 20A34).

15. How Do I Get the Abortion Pill?, Planned Parenthood, https://www.plannedparenthood.org/learn/abortion/the-abortion-pill/how-do-i-get-the-abortion-pill, (last visited Nov. 14, 2021).

16. Preventing Unsafe Abortion, WHO (Sept. 25, 2020), https://www.who.int/news-room/fact-sheets/detail/preventing-unsafe-abortion (noting that even after the pandemic there may still be barriers that may limit a women’s access to a safe abortion. Some barriers include restrictive laws, poor availability of services, high cost, stigma, conscientious objection of health-care providers and unnecessary requirements, such as mandatory waiting periods, mandatory counselling, provision of misleading information, third-party authorization, and medically unnecessary tests that delay care).

17. Abortion & Pregnancy Risks, La. Dep’t of Health, https://ldh.la.gov/index.cfm/page/915 (last visited Jan. 9, 2021) (stating that complications during the first trimester requires minor surgery. However, the risk of complications for the woman increases with the advancing gestational age. Some of the risks include, pelvic infection, incomplete abortion, blood clots in the uterus, heavy bleeding, cut or torn cervix, perforation of the uterus wall, anesthesia-related complications, Rh immune globulin therapy which leads to long-term medical risks, and future childbearing).

18. Roe v. Wade, 410 U.S. 113, 164 (1973) (“[A] state criminal abortion statute of the current Texas type, that excepts from criminality only a life-saving procedure on behalf of the mother, without regard to pregnancy stage and without recognition of the other interests involved, is violative of the Due Process Clause of the Fourteenth Amendment … For the stage subsequent to viability, the State in promoting its interest in the potentiality of human life may, if it chooses, regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother”).

19. Id.

20. Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 846 (1992) (“[A]fter considering the fundamental constitutional questions resolved by Roe, principles of institutional integrity, and the rule of stare decisis, we are led to conclude this: the essential holding of Roe v. Wade should be retained and once again reaffirmed . . . To protect the central right recognized by Roe v. Wade while at the same time accommodating the State’s profound interest in potential life, we will employ the undue burden analysis”).

21. June Med. Servs. L.L.C. v. Russo, 140 S. Ct. 2103 (2020) (noting that previously this court has held that “[u]nnecessary health regulations that have the purpose or effect of presenting a substantial obstacle to a woman seeking an abortion impose an undue burden on the right and are therefore constitutionally invalid”).

22. An Overview of Abortion Laws, Guttmacher Inst. (Dec. 9, 2020), https://www.guttmacher.org/state-policy/explore/overview-abortion-laws.

23. Id.

24. Id.

25. Counseling and Waiting Periods for Abortion, Guttmacher Inst. (Dec. 1, 2020), https://www.guttmacher.org/state-policy/explore/counseling-and-waiting-periods-abortion.

26. Mandatory Counseling for Abortion, Guttmacher Inst. (Jan. 22, 2020), https://www.guttmacher.org/evidence-you-can-use/mandatory-counseling-abortion.

27. Counseling and Waiting Periods for Abortion, Guttmacher Inst. (Dec. 1, 2020), https://www.guttmacher.org/state-policy/explore/counseling-and-waiting-periods-abortion.

28. Id.

29. Id.

30. Id.

31. Id.

32. Id.

33. Id.

34. Aittia, What are the Different Types of Abortion?, Planned Parenthood (Nov. 21, 2019, 9:22 PM), https://www.plannedparenthood.org/learn/teens/ask-experts/what-are-the-different-types-of-abortion.

35. Medical Abortion, Mayo Clinic (May 14, 2020), https://www.mayoclinic.org/tests-procedures/medical-abortion/about/pac-20394687.

36. The Abortion Pill, Planned Parenthood, https://www.plannedparenthood.org/learn/abortion/the-abortion-pill (last visited Dec. 25, 2020).

37. Id.

38. Id.

39. Id.

40. Id.

41. Mifeprex, supra note 6.

42. Id. (“Mifeprex is approved, in a regimen with misoprostol, to end a pregnancy through 70 days gestation (70 days or less since the first day of a woman’s last menstrual period.)”).

43. Id.

44. Id.

45. Id.

46. Caroline Kelly, Trump Administration Asks Supreme Court to Reinstate Medication Abortion Requirement Despite COVID-19, CNN (Aug. 26, 2020, 11:10 PM), https://www.cnn.com/2020/08/26/politics/trump-supreme-court-medication-abortion-coronavirus/index.html.

47. Id.

48. See Mifeprex, supra note 6.

49. Angela Hill & Karen Rodriguez, Abortion Pill Restricted by FDA for Decades Has Better Safety Record Than Penicillin and Viagra, USA Today (July 10, 2020), https://www.usatoday.com/story/news/2020/07/10/abortion-pill-restricted-fda-record-safer-than-penicillin-viagra/5412810002/ (noting that these types of restrictions are what is posing a burden on women and health care professionals and particularly those that are in the rural and medically underserved areas. Many women have to “navigate FDA regulations imposed on Mifeprex and the ever-changing landscape of state abortion laws that target medication abortion. This can often be a source of anxiety because medication abortions are only available in the first 10 weeks of a pregnancy”).

50. Id. (noting that data from a study indicates that drugs for erectile dysfunction have a mortality rate that is about four times greater than Mifeprex. However, unlike Mifeprex, erectile dysfunction drugs can be purchased at a pharmacy as long as there is a prescription for it).

51. Id. (noting that the regulations are even stricter than FDA’s regulations for opioids such as Fentanyl).

52. Id.

53. Id. (“Nearly half of the recorded deaths appear to be related to homicide, drug abuse, suicide and emphysema.”).

54. Id.

55. Id.

56. Lawrence B. Finer et al., Timing of Steps and Reasons for Delays in Obtaining Abortions in the United States, 74 Contraception 334, 334, https://www.guttmacher.org/sites/default/files/pdfs/pubs/2006/10/17/Contraception74-4-334_Finer.pdf (“Abortion, while in general a very safe procedure, has a higher medical risk when undergone later in pregnancy; compared to an abortion at 8 weeks’ gestation or earlier, the relative risk increases exponentially at higher gestations.”).

57. Id.

58. Erica Turret et al., COVID-19 Does Not Change the Right to Abortion, Health Affairs (Apr. 17, 2020), https://www.healthaffairs.org/do/10.1377/hblog20200416.799146/full/.

59. Id.

60. Id.

61. Id.

62. Laura D. Lindberg et al., Early Impacts of the COVID-19 Pandemic: Findings from the 2020 Guttmacher Survey of Reproductive Health Experiences, Guttmacher Inst. (June 2020), https://www.guttmacher.org/report/early-impacts-covid-19-pandemic-findings-2020-guttmacher-survey-reproductive-health.

63. Id.

64. B. Jessie Hill, Essentially Elective: The Law and Ideology of Restricting Abortion During the Covid-19 Pandemic, 106 Va. L. Rev. Online 99 (2020).

65. Laurie Sobel et al., State Action to Limit Abortion Access During the COVID-19 Pandemic, Kaiser Fam. Found. (Aug. 10, 2020), https://www.kff.org/coronavirus-covid-19/issue-brief/state-action-to-limit-abortion-access-during-the-covid-19-pandemic/ (some have claimed that “[a]uthoritarians all over the world have exploited the coronavirus to scrap civil liberties … with the country in a panic, they saw an opening to suspend the guarantees of Roe v. Wade, at least for the moment, and they took it”); Michelle Goldberg, Red States Are Exploiting Coronavirus to Ban Abortion, N.Y. Times (Apr. 6, 2020), https://www.nytimes.com/2020/04/06/opinion/abortion-covid.html (some claim politicians “in Texas and other states are exploiting the pandemic to suspend access to abortion”); Timeline: Our Fight Against Opportunistic Abortion Bans During the COVID-19 Pandemic, Planned Parenthood, https://www.plannedparenthoodaction.org/issues/abortion/timeline-our-fight-against-abortion-bans-during-covid19 (last visited Jan. 11, 2021) (women in Texas have suffered and are still facing hardship and uncertainty as Texas politicians “cruelly exploit the novel coronavirus pandemic to try to ban access to abortions”); Texas Politicians Are Cruelly Exploiting the Coronavirus Crisis to Limit Access to Abortions, Wash. Post (Apr. 15, 2020, 7:30 AM), https://www.washingtonpost.com/opinions/texas-politicians-are-cruelly-exploiting-the-coronavirus-crisis-to-limit-access-to-abortions/2020/04/14/0c4ed848-7e8d-11ea-8013-1b6da0e4a2b7_story.html (some claim that the “pandemic has created an opportunity for some anti-abortion government officials to attempt to strategically enforce additional restrictions on reproductive rights”); Sandra Rose Salathe, The Nightmarish Challenge of Trying to Get an Abortion in a Pandemic, Self (Oct. 8, 2020), https://www.self.com/story/abortion-access-challenges-pandemic (others claim that many “abortion advocates see it as an opportunity for politicians to further an anti-abortion agenda”); Pavithra Mohan, For Many Women, Abortion Access was Already Limited. Then COVID-19 Hit, Fast Company (Apr. 28, 2020), https://www.fastcompany.com/90496986/for-many-women-abortion-access-was-already-limited-then-covid-19-hit.

66. Timeline: Our Fight Against Opportunistic Abortion Bans During the COVID-19 Pandemic, Planned Parenthood, https://www.plannedparenthoodaction.org/issues/abortion/timeline-our-fight-against-abortion-bans-during-covid19 (last visited Jan. 11, 2021).

67. Arwa Mahdawi, There’s Nothing Pro-Life About Exploiting a Pandemic to Further a Political Agenda, Guardian (Apr. 4, 2020, 9:00 AM), https://www.theguardian.com/commentisfree/2020/apr/04/abortion-restrictions-coronavirus-pandemic-nothing-pro-life.

68. Michelle J. Bayefsky et al., Abortion During the COVID-19 Pandemic – Ensuring Access to an Essential Health Service, New Eng. J. Med. (May 7, 2020), https://www.nejm.org/doi/full/10.1056/NEJMp2008006.

69. Id.

70. Patrice A. Harris, AMA Statement on Government Interference in Reproductive Health Care, AMA (Mar. 30, 2020), https://www.ama-assn.org/press-center/ama-statements/ama-statement-government-interference-reproductive-health-care.

71. Lindberg, supra note 62.

72. Id. (The data indicated that 33% of women reported experiencing such obstacles.).

73. Id. (The data indicated that 38% of Black women reported experiencing such obstacles.).

74. Id. (The data indicated that 45% of Hispanic women reported experiencing such obstacles.).

75. Id. (The data indicated that 29% of White women reported experiencing such obstacles.).

76. Lindberg, supra note 62 (The data indicated that 46% of queer women reported experiencing such obstacles.).

77. Id. (The data indicated that 31% of straight women reported experiencing such obstacles.).

78. Id. (The data indicated that 36% of lower-income women reported experiencing such conditions.).

79. Id. (The data indicated that 31% of higher-income women reported experiencing such conditions.).

80. Bill Siwicki, Telemedicine During COVID-19: Benefits, Limitations, Burdens, Adaptation, Healthcare IT News (Mar. 19, 2020), https://www.healthcareitnews.com/news/telemedicine-during-covid-19-benefits-limitations-burdens-adaptation (“Telehealth is bridging the gap between people, physicians and health systems, enabling everyone, especially symptomatic patients, to stay at home and communicate with physicians through virtual channels, helping to reduce the spread of the virus to mass populations and the medical staff on the frontline.”).

81. Carrie N. Baker, Abortion Regulation in the Age of COVID-19, The Regulatory Rev. (Sept. 21, 2020), https://www.theregreview.org/2020/09/21/baker-abortion-regulation-covid-19/.

82. Id.

83. Id.

84. The Availability and Use of Medication Abortion, Kaiser Fam. Found. (June 8, 2020), https://www.kff.org/womens-health-policy/fact-sheet/the-availability-and-use-of-medication-abortion/.

85. Mifeprex, supra note 641.

86. The Availability and Use of Medication Abortion, supra note 84.

87. Am. Coll. of Obstetricians & Gynecologists v. Food & Drug Admin., 472 F. Supp. 3d 183, 233 (D. Md. 2020).

88. Id. at 189.

89. Id. at 189-93; see also Coronavirus in the U.S.: Latest Map and Case Count, N.Y. Times, https://www.nytimes.com/interactive/2020/us/coronavirus-us-cases.html (last updated Oct. 10, 2021 , 1:04 PM) (noting that there were at least 1,700 new coronavirus deaths and 96,951 new cases were reported in the United States on October 10. On average there are 96,951 cases per day, a decrease of 20% from the average two weeks earlier. As of October 10, 2021, more than 22,6, more than 44,306,983 people in people in the United States have been infected with the coronavirus).

90. FDA, 472 F. Supp. 3d at 193.

91. Id. at 227.

92. Id.

93. Id.

94. Id. at 208.

95. Id. at 216.

96. FDA, 472 F. Supp. 3d at 196.

97. Id.

98. Id. at 214.

99. Id.

100. Id.

101. Id. at 197.

102. FDA, 472 F. Supp. 3d at 197.

103. Am. Coll. of Obstetricians & Gynecologists v. Indiana, No. 20-1784, 2021 WL 3276054, at *1 (4th Cir. May 19, 2021).

104. Timeline: Our Fight Against Opportunistic Abortion Bans During the COVID-19 Pandemic, supra note 66.

105. Kelly, supra note 46.

106. Id.

107. I use this extreme suggestion to better exemplify the extreme nature and choice that women face when contemplating their abortion options.

108. Katherine Simmonds, Patient Education: Abortion, UpToDate (Mar. 5, 2021) https://www.uptodate.com/contents/abortion-pregnancy-termination-beyond-the-basics/print.

109. Kelly, supra note 46.

110. Kat Jercich, Trump Administration Asks Supreme Court to Reverse Abortion Telemed Ruling, Healthcare IT News (Aug. 27, 2020, 1:19 PM), https://www.healthcareitnews.com/news/trump-administration-asks-supreme-court-reverse-abortion-telemed-ruling (reporting that Planned Parenthood Federation of America’s President and CEO Alexis McGill-Johnson stated, “[t]he FDA’s in-person requirements on mifepristone subject patients to unnecessary exposure to a deadly virus, and two federal courts have already rejected the Trump administration’s argument. Forcing patients to travel to a health center toa access the safe, effective medication they need especially hurts people of color and people with low-incomes, who already face more barriers to care”).

111. FDA, 472 F. Supp. 3d at 205 (noting that physicians have “attested to the fact that 75 percent of abortion patients are poor or low income, and 60 percent have at least one child . . . Dr. Bryant has stated: ‘Many of these patients have struggled concurrently with housing instability, difficulty arranging childcare, and inability to keep utilities running. The added burden of securing transportation to our practice is nearly insurmountable for some, which often leads to missed or delayed care. All these burdens have been exacerbated during COVID-19 . . . These patients will either have to forgo care, leave their children with others in their community who may be at high risk of infection, or have their children travel with them through the city and to the office, increasing their risk of exposure to the virus,’ particularly since most rely on public transportation.”).

112. About the Project, TelAbortion, https://telabortion.org/about (last visited Dec. 26, 2020) (“[T]he medications used in a TelAbortion are approved by the U.S. Food and Drug Administration and are the same ones you would receive if you went to an office or clinic for in-person care. The experimental part of the study is the mailing of the medications.”).

113. Pam Belluck, Abortion by Telemedicine: A Growing Option as Access to Clinic Wanes, N.Y. Times (Apr. 28, 2020) https://www.nytimes.com/2020/04/28/health/telabortion-abortion-telemedicine.html.

114. Id.

115. TelAbortion is Safe, Effective, Private, and Convenient, Provide, https://providecare.org/telabortion-safe-effective-private-convenient/ (last visited Dec. 26, 2020).

116. Belluck, supra note 113.

117. Robert Barnes, Supreme Court Puts on Hold Trump Administration Request to Reimpose Medication Abortion Restrictions, Wash. Post (Oct. 8, 2020, 7:27 PM), https://www.washingtonpost.com/politics/courts_law/supreme-court-puts-on-hold-trump-administration-request-to-reimpose-medication-abortion-restrictions/2020/10/08/e6e1b598-09b6-11eb-9be6-cf25fb429f1a_story.html.

118. Id. (“Alito said the court has ‘stood by’ while officials-imposed restrictions on religious activities and ‘drastically limited speech, banning or restricting public speeches, lectures, meetings, and rallies.’ The court’s action in this case cannot be squared with that, Alito wrote.”).

119. Kaiser Fam. Found., supra note 84; see also Korin Miller, 9 Questions You Probably Have About the Abortion Pill, Answered by Doctors, SELF (July 31, 2020), https://www.self.com/story/abortion-pill-facts.

120. Miller, supra note 119.

121. Food & Drug Admin. v. Am. Coll. of Obstetricians & Gynecologists, 141 S. Ct. 10, 11 (2020).

122. Id.

123. Am. Coll. of Obstetricians & Gynecologists v. U.S. Food & Drug Admin., 506 F. Supp. 3d 328, 349 (D. Md. 2020).

124. Id.

125. Food and Drug Administration v. American College of Obstetricians & Gynecologists, SCOTUSblog, https://www.scotusblog.com/case-files/cases/food-and-drug-administration-v-american-college-of-obstetricians-and-gynecologists/ (last visited Jan. 10, 2021).

126. Tracking Trump – Donald Trump, Planned Parenthood, https://www.plannedparenthoodaction.org/tracking-trump/player/donald-trump (last visited Jan. 9, 2021).

127. Jose A. Del Real, Trump: If Abortions are Banned, Women Who Seek Them Should Face ‘Punishment’, Wash. Post (Mar. 30, 2016), https://www.washingtonpost.com/news/post-politics/wp/2016/03/30/trump-if-abortions-were-banned-women-who-seek-them-would-face-punishment/.

128. Erica Gonzales, Where Does Joe Biden Stand on Abortion? Harper’s Bazaar (Nov. 9, 2020, 1:50 PM), harpersbazaar.com/culture/politics/a34205908/joe-biden-stance-on-abortion/.

129. The Biden Agenda for Women, Biden Harris, (last visited Jan. 9, 2021) https://joebiden.com/womens-agenda/. Due to the uncertainty about abortion rights in the courts, during his campaign Joe Biden has proposed to codify Roe v. Wade.; Sarah McCammon, What Joe Biden’s Election Means for Abortion Rights, NPR (Dec. 1, 2020, 5:07 AM), https://www.npr.org/2020/12/01/935947603/what-joe-bidens-election-means-for-abortion-rights. Joe Biden also stated during his campaign that he will “protect abortion rights should the Supreme Court strike down Roe v. Wade, vowing he would enact legislation making Roe v. Wade ‘the law of the land’ if it were overturned by the court.”; Tommy Beer, Biden Vows to Protect Abortion Rights, Provoking Harsh Response From Trump, Forbes (Oct. 6, 2020, 12:10 PM), https://www.forbes.com/sites/tommybeer/2020/10/06/biden-vows-to-protect-abortion-rights-provoking-harsh-response-from-trump/?sh=139c83162051.

130. Caroline Kelly & Nicole Gaouette, Biden Signs Memorandum Reversing Trump Abortion Access Restrictions, CNN Politics (Jan. 28, 2021, 2:56 PM), https://www.cnn.com/2021/01/28/politics/biden-abortion-executive-orders/index.html.

131. Rachel Rebouch, The Supreme Court Doesn’t Hold All the Power When It Comes to Abortion Rights. Here Are Things the Biden Administration Can Do to Extend Access, Time (Dec. 22, 2020, 9:00 AM), https://time.com/5922555/medication-abortion-joe-biden/.

132. Romanis & Parsons, supra note 7 (“[P]olicies of lockdown and social distancing, the burden on health services and staff redeployments, and damage to supply chains are making it increasingly difficult for people, including women, trans-gender males and non-binary or non-gender conforming people that have the physiology to become pregnant, to access abortion services. Even where women can access in-person services, to do so they must put themselves and, by extension, those they live with, at risk of COVID-19 infection. In many cases these obstacles were pre-existing and have simply been exacerbated, whereas others have only recently arisen.”).

133. Megan K. Donovan, Improving Access to Abortion via Telehealth, Guttmacher Pol’y Rev. (May 16, 2019), https://www.guttmacher.org/gpr/2019/05/improving-access-abortion-telehealth# (“[In] the United States, where access to abortion is highly politicized and varies from state to state, telehealth provision of abortion has improved access to care in some states. Yet federal and state restrictions limit whether and how patients can use this type of care. Lifting these restrictions could expand abortion access to new and underserved communities. It could also allow for the growth of additional telehealth models that offer increased convenience, flexibility and privacy.”).

134. Id.

135. Id.

136. Roopan Gill & Wendy V. Norman, Telemedicine and Medical Abortion: Dispelling Safety Myths, with Facts, MHealth 1 (Feb. 01, 2018), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5847856/pdf/mh-04-2018.01.01.pdf.

137. Id. (finding that more than “30% of females undergo at least one medical or surgical termination of pregnancy. Geographic challenges can affect access to abortion, requiring people to travel great distances for services. This is particularly challenging for more vulnerable patients, who are often affected by socioeconomic barriers to access equitable, high quality care.”).

138. Brittany Risher Englert, Access to Telehealth Abortion Isn’t Just a COVID Issue, Paper Gown (June 17, 2020), https://thepapergown.zocdoc.com/telehealth-abortion-should-be-an-option-all-the-time-not-just-during-a-pandemic/.

139. Receiving Medication Abortion Through Telemedicine as Safe as In Person, ANSIRH (Oct. 1, 2017), https://www.ansirh.org/news/receiving-medication-abortion-through-telemedicine-safe-person.

140. Amanda D’Ambrosio, Telemedicine Abortion Gains Momentum During Pandemic, MedPage Today (June 2, 2020), https://www.medpagetoday.com/special-reports/exclusives/86841.

141. Id.

142. Barnes, supra note 117.

143. Katherine Simmonds, Patient Education: Abortion, UpToDate (Mar. 5, 2021) https://www.uptodate.com/contents/abortion-pregnancy-termination-beyond-the-basics/print.

144. Am. Coll. of Obstetricians & Gynecologists v. U.S. Food & Drug Admin., 472 F. Supp. 3d 183, 212 (D. Md. 2020). The court first noted the seriousness of the COVID 19 pandemic and stated that:

     [at] an initial level, the affected medication abortion patients face the specter of an unprecedented global pandemic involving COVID-19, a highly contagious and life-threatening respiratory disease. Where the President has declared the COVID-19 pandemic a national emergency, and there are now over three million cases in the United States and over 130,000 deaths, its impact is nationwide. The Governors of all 50 states have each declared a state of emergency and have issued, at different times, some combination of stay-at-home orders, restrictions on the operation of businesses and institutions, limitations on social gatherings, and even bans on elective surgeries. Overall, the impact of the pandemic is increasing, not decreasing. As of July 1, 2020, the number of cases has been increasing in 42 states.

     Id. (citing to John Hopkins University & Medicine, Testing Trends Tool, JHU (last updated Jan. 14, 2021, 3:00 AM), https://coronavirus.jhu.edu/testing/tracker/overview). Then the court notes that clinics will only be able to work at twenty-five percent of “previous in-person capacity at least until Spring 2021, which will limit the ability of patients who need abortion care to come into the clinic to receive mifepristone.” Id. at 214.

145. FDA, 472 F. Supp. 3d at 196.

146. FDA, 472 F. Supp. 3d.

147. See generally id.

148. FDA, 472 F. Supp. 3d at 197. (“According to Monica Simpson, the Executive Director of Sister Song, a national, multi-ethnic membership organization dedicated to improving policies and systems relating to the reproductive lives of marginalized communities, because ‘people of color are less likely to own a car than white people,’ they 'rely more heavily on public transportation, borrowing a car, getting a ride from a friend, or paying for a car service, all of which expose them to risks of infection . . . For abortion patients in rural states such as New Mexico face trips that can last several hours each way and thus must accept additional risks associated with stops at gas stations and restrooms.”).

149. Katherine Chen et al., How Is the Covid-19 Pandemic Shaping Transportation Access to Health Care?, 10 Transportation Res. Interdisciplinary Perspectives (2021), https://www.sciencedirect.com/science/article/pii/S2590198221000452.

150. Ctr. for Reproductive Rights, Expanding Telemedicine Can Ensure Abortion Access During COVID-19 Pandemic 1 (Apr. 29, 2020), https://reproductiverights.org/wp-content/uploads/2020/12/Expanding-Telemedicine-Can-Ensure-Abortion-Access-During-COVID-19-Pandemic.pdf . However, there are states that “have restricted access to medication abortions for reasons unrelated to medical necessity. Eighteen states prohibit the use of telemedicine for medication abortion, requiring patients to visit the prescribing provider in person to obtain the pills. The COVID-19 pandemic underscores the importance of removing restrictions on telemedicine and improving access to medication abortion.” Id. at 2.

151. Kat Jercich, Telehealth and Mail-Order Abortion Possible in Some States During Pandemic, Healthcare IT News (July 16, 2020, 10:36 AM), https://www.healthcareitnews.com/news/telehealth-and-mail-order-abortion-possible-some-states-during-pandemic; Ushma D. Upadhyay, The FDA Approved the Abortion Pill 20 Years Ago. It’s Time to Make It Available Via Telehealth, STAT (Sept. 24, 2020), https://www.statnews.com/2020/09/24/make-abortion-pill-available-via-telehealth/; see also Ushma Upadhyay et al., Adoption of No-Test and Telehealth Medication Abortion Care Among Independent Abortion Providers in Response to COVID-19, Contracept X (Nov. 21, 2020), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC7718446/.

152. Ctr. for Reproductive Rights, Expanding Telemedicine Can Ensure Abortion Access During COVID-19 Pandemic 2 (Apr. 29, 2020), https://reproductiverights.org/wp-content/uploads/2020/12/Expanding-Telemedicine-Can-Ensure-Abortion-Access-During-COVID-19-Pandemic.pdf (“States should consider the following strategies to improve access: suspend existing bans on telemedicine provision of medication abortion; lift requirements for in-person counseling or follow up visits; increase the types of providers who are able to provide telehealth services. Multiple studies have found that advanced practice clinicians such as nurse practitioner, certified nurse midwives, and physician assistants, can administer medication abortion as safely and effectively as physicians. Despite this, 33 states require that medication abortions be provided by a licensed physician, barring advanced practice clinicians from providing care. Waive licensing requirements to allow out-of-state providers to provide telehealth; require insurance coverage of visits and check-ins for established or new patients conducted through a variety of technologies: video conferencing, telephone or audio-only consultations, and communications through online patient portals. States should further require that telemedicine care should be covered at the same rate as in-person visits.”).

153. Emma Green, Is This Really the End of Abortion?, Atlantic (Sept. 22, 2020), https://www.theatlantic.com/politics/archive/2020/09/abortion-supreme-court-vacancy/616430/.

154. Food & Drug Admin. v. Am. Coll. of Obstetricians & Gynecologists, 141 S. Ct. 578 (2021).

155. Laurie Sobel et al., Abortion at SCOTUS: A Review of Potential Cases This Term and Possible Rulings, Kaiser Fam. Found. (Oct. 30, 2020), https://www.kff.org/womens-health-policy/issue-brief/abortion-at-scotus-a-review-of-potential-cases-this-term-and-possible-rulings/.

156. MaryBeth Musumeci & Laurie Sobel, A Reconfigured U.S. Supreme Court: Implications for Health Policy, Kaiser Fam. Found. (Oct. 09, 2020), https://www.kff.org/health-reform/issue-brief/a-reconfigured-u-s-supreme-court-implications-for-health-policy/.

157. Mary Ziegler, How the Supreme Court Could Overturn Roe —While Claiming to Respect Precedent, Wash. Post (July 1, 2020, 11:58 AM), https://www.washingtonpost.com/outlook/how-supreme-court-could-overturn-roe/2020/07/01/51fe4a2c-bb1e-11ea-80b9-40ece9a701dc_story.html; Julie Rovner, Roe v. Wade: Settled Law or Bad Precedent? States Prep for an Overturn, NPR (Jan. 21, 2020, 5:00 AM), https://www.npr.org/sections/health-shots/2020/01/21/797102280/roe-v-wade-settled-law-or-bad-precedent-states-prep-for-an-overturn.

158. Sobel et al., supra note 155 (“[I]t is very likely that a newly configured Supreme Court will either review one of the pending abortion cases or other challenges to state abortion laws that have not yet reached the Court. With the new seating of Justice Amy Coney Barrett… the conservative majority may make changes to how abortion regulations are evaluated. If the Supreme Court allows states more authority to limit abortions or limits legal standing to challenge abortion regulations to people seeking abortions, without a federal standard, state laws will alone determine whether, when, and where women have legal access to abortion in this country.”).

159. Donovan, supra note 133.

160. Richard Wolf, Year of Surprise Supreme Court Rulings Shows Influence of Powerful Chief Justice John Roberts, USA Today (July 10, 2020, 12:37 PM), https://www.usatoday.com/story/news/politics/2020/07/10/abortion-daca-religion-lgbtq-rights-supreme-courts-wild-year/5389928002/ (noting that Chief Justice Roberts was in the majority 60 times during this term out of the 62 cases he reviewed).

161. Ian Millhiser, Why Conservative Chief Justice Roberts Just Struck Down an Anti-Abortion Law, Vox (June 29, 2020, 12:14 PM), https://www.vox.com/2020/6/29/21306895/supreme-court-abortion-chief-justice-john-roberts-stephen-breyer-june-medical-russo.

162. Lawrence Hurley, Trump-Appointed Justice Could Signal Major Supreme Court Shift on Abortion, Reuters (Sept. 23, 2020, 6:06 AM), https://www.reuters.com/article/usa-court-abortion/trump-appointed-justice-could-signal-major-supreme-court-shift-on-abortion-idUSKCN26E1S6.

163. Id. (“[T]wo of the court’s high-profile cases, Roberts showed he will take an incremental approach to curbing some of the court’s precedents.”); Tom Curry, Robert’s Rule: Conservative But Incremental, NBC News (June 25, 2007, 11:27 AM), https://www.nbcnews.com/id/wbna19415777; see also Richard Wolf, Chief Justice John Roberts’ Supreme Court at 10, Defying Labels, USA Today (Sept. 28, 2015, 4:32 PM), https://www.usatoday.com/story/news/politics/2015/09/28/supreme-court-john-roberts-conservative-liberal/72399618/; Adam Liptak, Robert’s Incremental Approach Frustrates Supreme Court Allies, N.Y. Times (July 14, 2014), https://www.nytimes.com/2014/07/15/us/supreme-court-shows-restraint-in-voting-to-overrule-precedents.html.

164. Caroline Kelly & Ariane de Vogue, How John Roberts Left the Door Open to More State Limits on Abortion, CNN, https://www.cnn.com/2020/06/29/politics/supreme-court-abortion-roberts-footnote/index.html (last updated, June 29, 2020, 11:21 PM); see also supra note 162.

165. Id.

166. Id.; Millhiser, supra note 161 (“Roberts didn’t save abortion rights, he told future litigants how to bury them.”).

167. June Med. Servs. L.L.C. v. Russo, 140 S. Ct. 2103 (2020).

168. Id.

169. Millhiser, supra note 161; see also Isaac Chotiner, What John Roberts’s Surprise Abortion-Rights Ruling Means for the Future of Roe v. Wade, New Yorker (June 29, 2020), https://www.newyorker.com/news/q-and-a/what-john-robertss-surprise-abortion-rights-ruling-means-for-the-future-of-roe-v-wade.

170. Robert Barnes, With Abortion Ruling, Roberts Reasserts His Role and Supreme Court’s Independence, Wash. Post (June 29, 2020), https://www.washingtonpost.com/politics/courts_law/john-roberts-supreme-court-abortion-ruling/2020/06/29/64dd30a6-ba3b-11ea-80b9-40ece9a701dc_story.html.

171. Margaret Talbot, The First Abortion Case Before a Post-Ginsburg Supreme Court, New Yorker (Sept. 29, 2020), https://www.newyorker.com/news/daily-comment/the-first-abortion-case-before-a-post-ginsburg-supreme-court.

172. Food & Drug Admin. v. Am. Coll. of Obstetricians & Gynecologists, 141 S. Ct. 578, 579 (2021).

173. Id.; Talbot, supra note 171.

174. Jamie Ehrlich, Justice Clarence Thomas Says Roe Decision Doesn’t Have ‘Shred’ of Constitutional Support, CNN (July 9, 2020, 10:37 AM), https://www.cnn.com/2020/06/29/politics/clarence-thomas-abortion-dissent/index.html (“Supreme Court Justice Clarence Thomas said the landmark Roe v. Wade case that paved the way for legalized abortion in the US is ‘without a shred of support’ from the Constitution.”).

175. Id. (noting that in his dissent in June Medical, he wrote that Roe v. Wade “created the right to abortion out of whole cloth, without a shred of support from the Constitution’s text”).

176. Caroline Kelly & Ariane de Vogue, Clarence Thomas Urges Supreme Court to Revisit Abortion Precedents as Justices Dodge Another Case, CNN (June 28, 2019, 11:39 AM), https://www.cnn.com/2019/06/28/politics/supreme-court-alabama-abortion-clarence-thomas/index.html; Rick Claybrook, Why Is Justice Thomas on the Warpath Against Abortion?, Nat’l Legal Found. (July 17, 2019), https://nationallegalfoundation.org/blog/why-is-justice-thomas-on-the-warpath-against-abortion/ (“Justice Clarence Thomas decried the current state of the Court’s abortion precedent, railing that ‘we cannot continue blinking the reality of what this Court has wrought.’”); see also Alexandra Hutzler, Supreme Court Justice Thomas Takes on Abortion Rights, Says Court Decisions Have ‘Spiraled Out of Control’, NewsWeek (June 28, 2019, 1:04 PM), https://www.newsweek.com/supreme-court-justice-clarence-thomas-takes-abortion-rights-1446545.

177. June Med. Servs. L.L.C. v. Russo, 140 S. Ct. 2103, 2142 (2020) (Thomas, J., dissenting).

178. Id.; Dan Cooney, READ: Supreme Court’s Full Decision on Louisiana’s Abortion Restriction, PBS (June 29, 2020, 1:43 PM), https://www.pbs.org/newshour/politics/read-the-supreme-courts-full-decision-on-louisianas-abortion-restriction.

179. Box v. Planned Parenthood of Ind. & Ky., Inc., 139 S. Ct. 1780, 1784 (2019) (Thomas, J., concurring) (holding that the Indiana law “regulating the disposition fetal remains was supported by a rational basis”).

180. Ariane de Vogue, Thomas, Ginsburg Draw Battle Lines For Future Abortion Cases, CNN (May 28, 2019, 5:37 PM), https://www.cnn.com/2019/05/28/politics/thomas-ginsburg-abortion/index.html; Abby Vesoulis, Justice Clarence Thomas Likens Some Abortions to Eugenics in 20-Page Supreme Court Opinion, Time (May 28, 2019, 8:45 PM), https://time.com/5597263/clarence-thomas-abortion-eugenics/ (“Justice Thomas compared abortions prompted by fetal abnormalities to eugenics – the practice of selective breeding intended to improve a population’s genetics.”).

181. Box, 139 S. Ct. at 1784 (Thomas, J., concurring).

182. Bess Levin, Clarence Thomas Likens Birth Control and Abortion to Nazi Science, Vanity Fair (May 28, 2019), https://www.vanityfair.com/news/2019/05/clarence-thomas-abortion-eugenics.

183. Mark Joseph Stern, Clarence Thomas Pens Screed Comparing Women Who Obtain Abortions to Eugenicists, Slate (May 28, 2019, 2:50 PM), https://slate.com/news-and-politics/2019/05/clarence-thomas-indiana-abortion-eugenics-nondiscrimination.html; see also Box, 139 S. Ct. at 1784-85, 1788 (Thomas, J., concurring) (“[T]he use of abortion to achieve eugenic goals is not merely hypothetical. The foundations for legalizing abortion in America were laid during the early 20^th-century birth-control movement. That movement developed alongside the American eugenics’ movement … Given the potential for abortion to become a tool of eugenic manipulation, the Court will soon need to confront the constitutionality of laws like Indiana’s … This case highlights the fact that abortion is an act rife with the potential for eugenic manipulation.”).

184. Box, 139 S. Ct. at 1788 (Thomas, J., concurring).

185. High Court Nominee Confirmed by Senate Committee, 3(14) Reprod Freedom News4 (July 22, 1994), https://pubmed.ncbi.nlm.nih.gov/12287947/; see also Ctr. for Reproductive Rts., Current Supreme Court Justices’ Answers to Questions About Roe and Abortion During Their Confirmation Hearings , (2006) https://www.reproductiverights.org/sites/crr.civicactions.net/files/documents/4 Current Supreme Court Justices Answers to Questions.pdf (last visited Dec. 29, 2020).

186. Franchise Tax Bd. of Cal. v. Hyatt, 139 S. Ct. 1485, 1506 (2019). ; Pete Williams, Supreme Court’s Breyer, Mentioning Abortion Case, Warns About Overturning Precedent, NBC News (May 13, 2019, 12:56 PM), https://www.nbcnews.com/politics/supreme-court/supreme-court-s-breyer-mentioning-abortion-case-warns-about-overturning-n1005066 (“Supreme Court Justice Stephen Breyer warned Monday that his colleagues might be too eager to overturn earlier rulings that he said deserve respect as established precedent, mentioning a key abortion ruling as one of them.”); see also Matt Murphy, Breyer: Overturning Precedents Should Be Rare, Daily Hampshire Gazette (Oct. 11, 2020, 1:39 PM), .https://www.gazettenet.com/Breyer-Overturning-Precedents-Should-be-Rare-36720331.

187. Linda Greenhouse, How Chief Justice Roberts Solved His Abortion Dilemma, N.Y. Times (July 2, 2020), https://www.nytimes.com/2020/07/02/opinion/supreme-court-abortion-roberts.html.

188. Id.

189. June Med. Servs. L. L. C. v. Russo, 140 S. Ct. 2103, 2112 (2020).

190. Id.

191. Diane Geng, Judging Samuel Alito on Abortion Rights, NPR (Jan. 24, 2006, 4:58 PM), https://www.npr.org/2006/01/24/5081976/judging-samuel-alito-on-abortion-rights.

192. Roger Pilon, Alito and Abortion, CATO Inst. (Nov. 28, 2005), https://www.cato.org/publications/commentary/alito-abortion; Geng, supra note 191 (“[A]bortion rights advocates see this wording as evidence that Alito would seek to reduce Roe’s range. His supporters, however, say the documents simply reflect a career lawyer representing his client – the anti-abortion Reagan administration.”).

193. As Appellate Judge, Alito Ruled on Key Abortion Case, ABC News (Nov. 1, 2005, 10:17 AM), https://abcnews.go.com/Politics/SupremeCourt/story?id=1267040.

194. Geng, supra note 191.

195. Id.

196. Id. (noting that Justice Alito’s motivating factor for assisting in overturning this ban was because the Supreme Court had struck down a similar law in Nebraska just weeks before).

197. Id.

198. Richard W. Stevenson & Neil A. Lewis, Alito, At Hearing, Pledges an Open Mind on Abortion, N.Y. Times (Jan. 11, 2006), https://www.nytimes.com/2006/01/11/politics/politicsspecial1/alito-at-hearing-pledges-an-open-mind-on-abortion.html (noting that Justice Alito “did not commit himself to upholding or overturning the right to an abortion, and he did not address whether he might support further incremental restrictions on abortions”).

199. Rachel McCraken, June Medical Services v. Russo: Has the Court Lost Its Way?, Nat’l Legal Found. (Aug. 10, 2020), https://nationallegalfoundation.org/updates/june-medical-services-v-russo-has-the-court-lost-its-way/ (noting that Justice Alito explained that Whole Woman’s Health and June Medical were different because “the Texas law was in effect when the Court reviewed it, and therefore Whole Woman’s Health looked at the consequences of the law. Act 620 was not in effect when challenged in Court, so in June Medical the judges were left to speculate concerning potential future issues with the law”).

200. Id.

201. Kathy Kiely & Joan Biskupic, Sotomayor Declines to Talk About Abortion Views, ABC News (July 15, 2009, 1:38 PM), https://abcnews.go.com/Politics/story?id=8091129&page=1; Nina Totenberg, Few Clues to Sotomayor’s Position on Abortion, NPR (May 28, 2009, 4:00 PM), https://www.npr.org/templates/story/story.php?storyId=104679046 (“[A]s of 2009, Sonia Sotomayor has been a federal judge for 17 years, but never in that time has she ruled directly on whether there is a constitutional right to an abortion.”).

202. Charlie Savage, Respecting Precedent, or Settled Law, Unless It’s Not Settled, N.Y. Times (July 14, 2009), https://www.nytimes.com/2009/07/15/us/politics/15abortion.html (noting that throughout her confirmation hearing, Justice Sotomayor “repeatedly insisted that she rules in alignment with precedents, that as a Supreme Court justice she would respect precedent under the doctrine known as stare decisis, and that Supreme Court opinions on everything from gun rights to contraception represent ‘settled law’”).

203. Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292, 2298– 2300 (2016).

204. June Med. Servs. L.L.C. v. Russo, 140 S. Ct. 2103 (2020).

205. Food & Drug Admin. v. Am. Coll. of Obstetricians & Gynecologists, 141 S. Ct. 578, 579 (2021).

206. Id.

207. SCOTUSblog Briefing Paper, SCOTUSBlog (June 12, 2010), https://www.scotusblog.com/wp-content/uploads/2010/06/Kagan-issues_abortion-June-141.pdf.

208. Bill Mears, Kagan Documents Reveal Pragmatic Approach on Abortion Controversy, CNN (June 4, 2010, 3:13 PM), https://www.cnn.com/2010/POLITICS/06/04/kagan.documents.abortion/index.html.

209. Ariane de Vogue, Elena Kagan Abortion Memo Offers New Look at Nominee, ABC News (May 11, 2010, 4:11 PM), https://abcnews.go.com/Politics/Supreme_Court/elena-kagan-abortion-memo-supreme-court-nominee/story?id=10618601; see SCOTUSblog Briefing Paper, supra note 207 (“In the Clinton Administration, [Kagan] urged the President to support a compromise on legislation that would have restricted so-called partial abortions, but which would have included an exception for the health of the mother; such a position, she reasoned in part, would justify a veto of a broader ban on late term abortions.”).

210. Michelle Ruiz, What’s Really at Stake in the Supreme Court’s Abortion Decision, Vogue (Mar. 7, 2016), https://www.vogue.com/article/supreme-court-abortion-decision-whole-womens-health (noting that in support of Justice Kagan’s comment, Justice Breyer noted that “[c]olonoscopies pose 28 times the risk of abortion . . . but also aren’t regulated with the same stringency.”).

211. Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292 (2016).

212. June Med. Servs. L.L.C. v. Russo, 140 S. Ct. 2103 (2020).

213. Adam Liptak, Supreme Court Blocks Louisiana Abortion Law, N.Y. Times (June 29, 2020), https://www.nytimes.com/2019/02/07/us/politics/louisiana-abortion-law-supreme-court.html.

214. Food & Drug Admin. v. Am. Coll. of Obstetricians & Gynecologists, 141 S. Ct. 578, 579 (2021).

215. Eliana Dockterman & Alexandra Sifferlin, What Neil Gorsuch Means in the Battle Over Abortion Rights, Time (Feb. 10, 2017, 8:00 AM), https://time.com/4652322/donald-trump-gorsuch-abortion/; see also Arina Grossu, Gorsuch’s Pro-Life Promise, U.S. News (Mar. 21, 2017, 2:45 PM), https://www.usnews.com/opinion/civil-wars/articles/2017-03-21/5-rulings-that-show-neil-gorsuch-wont-defer-to-abortion-advocates.

216. Elizabeth Slattery, In Abortion Case, Key Questions Come From Alito, Ginsburg, Sotomayor, Heritage Found. (Mar. 5, 2020), https://www.heritage.org/life/commentary/abortion-case-key-questions-come-alito-ginsburg-sotomayor.

217. June Med. Servs. L.L.C. v. Russo, 140 S. Ct. 2103 (2020).

218. Id. at 2171.

219. Id.

220. Sarah Boonin, Think Abortion Rights Are Safe Now? Maybe Not, WBUR (July 1, 2020), https://www.wbur.org/cognoscenti/2020/07/01/abortion-supreme-court-june-medical-services-sarah-boonin.

221. Charlie Savage, Brett Kavanaugh on the Issues: Abortion, Guns, Climate and More, N.Y. Times (July 10, 2018), https://www.nytimes.com/2018/07/10/us/politics/brett-kavanaugh-abortion-guns-environment.html.

222. Id. (noting that Justice Kavanaugh’s history on the Court of Appeals for the District of Columbia Circuit is not a true guide as to how he would rule on the Supreme Court because appeals court judges are bound by the rulings made in the Supreme Court, but justices are allowed to overturn precedent).

223. D’Angelo Gore, Kavanaugh Files: Abortion Rights, FactCheck.org (Sept. 7, 2018), https://www.factcheck.org/2018/09/kavanaugh-files-abortion-rights/.

224. Slattery, supra note 216.

225. June Med. Servs. L.L.C. v. Russo, 140 S. Ct. 2103 (2020).

226. Arwa Mahdawi, Brett Kavanaugh Shows True Colours in Supreme Court Abortion Dissent, Guardian (Feb. 9, 2019, 9:00 AM), https://www.theguardian.com/commentisfree/2019/feb/09/brett-kavanaugh-shows-true-colours-in-supreme-court-abortion-dissent.

227. Hurley, supra note 162.

228. Id.

229. Brent Kendall & Jess Bravin, Amy Coney Barrett: What Comes Next and How the Supreme Court Will Change, Wall St. J. (Oct. 25, 2020, 12:08 PM), https://www.wsj.com/articles/amy-coney-barrett-what-comes-next-and-how-the-supreme-court-will-change-11603642087 (noting that “on gun rights, Judge Barrett has voiced an expansive reading of the Second Amendment’s protections,” and that in the past she “opposed a categorical ban on gun possession by felons, dissenting in a case involving a white-collar defendant convicted of Medicare fraud”).

230. Id. (“[As] a law professor at Notre Dame, she also signed an antiabortion newspaper advertisement more than a decade ago that criticized Roe v. Wade, the higher court’s landmark abortion-rights ruling.”); see also Hurley, supra note 162 (noting that Justice Barrett is a conservative Roman Catholic who was appointed by President Trump to the Chicago-based Seventh U.S. Circuit Court of Appeals in 2017 and that since Justice Barrett’s confirmation to the vacant seat in the Supreme Court, abortion rights activists have raised concerns about her vote to overturn Roe).

231. Rebouche, supra note 131.

232. Asim Kichloo et al., Telemedicine, the Current COVID-19 Pandemic and the Future: A Narrative Review and Perspectives Moving Forward in the USA, 8 Fam. Med. Cmty. Health 1, 7 (Aug. 18, 2020).

233. Gill & Norman, supra note 136.

234. US Supreme Court Rules to Uphold Abortion Rights, AlJazeera (June 29, 2020), https://www.aljazeera.com/news/2020/6/29/us-supreme-court-rules-to-uphold-abortion-rights.