Attorney General Frosh Joins Coalition Fighting for Abortion Access During Coronavirus Pandemic

Coalition Files Amicus Brief to Support Removing Barriers for Women Accessing Abortion Pill; Brief Follows Letter to HHS and FDA Requesting Restrictions on Mifepristone Be Lifted

 BALTIMORE, MD (June 5, 2020) – Maryland Attorney General Brian E. Frosh joined a multistate coalition of 23 attorneys general in supporting legal action taken against the Food and Drug Administration (FDA) and the U.S. Department of Health and Human Services (HHS) for increasing the risk that women nationwide will contract COVID-19 as they seek abortions in their state.  In an amicus brief filed in support of the plaintiffs in American College of Obstetricians and Gynecologists et al. v. FDA et al., the coalition supports the plaintiffs’ request for a preliminary injunction to halt an FDA requirement that forces women to appear in person in a clinical setting to receive a drug known as Mifepristone for an early abortion or for miscarriage care.  The coalition argues that the drug should be readily accessible via telehealth, so as to not potentially expose women to COVID-19 by requiring unnecessary travel to obtain it.  The brief was filed in the U.S. District Court for the District of Maryland.

 “Requiring women patients to appear in person to access legal medical services during the COVID-19 pandemic is harmful to women, their families, and the public in general,” said Attorney General Frosh.  “Telehealth is not only acceptable for the purpose of prescribing this medication, but encouraged by federal and state guidance on preventing the spread of COVID-19.”

 Since the widespread onset of COVID-19 across the United States in March, nearly 1.9 million Americans have contracted the disease, resulting in more than 107,000 deaths, including more than 56,700 infections and more than 2,500 deaths in Maryland.  In response, legislators, officials, and agencies across the nation have been instituting various emergency measures to slow the spread of the virus by limiting face-to-face contact and reducing in-person social gatherings, such as by closing schools and requiring nonessential employees to work from home, as limiting interpersonal contact is central to the ability to control the spread of the virus.

 But the FDA’s current policy requiring patients to appear in person in a clinical setting to receive Mifepristone heightens the risk of contracting and transmitting COVID-19 for everyone involved—including patients and health care providers.  Forcing women to travel at a time when many states and the federal government are urging people to stay home to curb the spread of COVID-19 is shortsighted, and puts not only women and their close contacts across the country in harm’s way, but also the public health more generally.  Further, this policy undermines different states’ ability to effectively manage the pandemic.

 In the brief, the coalition specifically argues that “many women will need to travel long distances in order to reach a clinic that dispenses Mifepristone—sometimes up to two-hundred miles—especially if they reside in rural and medically underserved locations.”  Additionally, those women in more compact, urban cities may not have the option to practice social distancing outside the home, therefore increasing the likelihood of coming into contact with an individual who has contracted COVID-19.  But “[b]y using measures like telehealth to reduce unnecessary person-to-person contacts, [states] can decrease their infection rate, as required to safely commence reopening even as the pandemic continues.”  In fact, the coalition continues, “telehealth should be used wherever possible—even as phased reopening of the States occur[s]—because it ‘maximize[s] the number of capable health care workers’ providing necessary medical treatment, while protecting health care staff,” and “the counseling required prior to a medication abortion is routinely provided through telehealth in order to reduce in-clinic interactions.”

 Another division of HHS and the Centers for Disease Control and Prevention have both advocated for telehealth, stating, “[l]everaging telemedicine whenever possible is the best way to protect patients and staff from COVID-19.” 

 The coalition goes on to highlight that their states have already taken numerous steps to expand the use of telehealth during the current public health crisis, including the suspension “of existing statutes and regulations that limit the use of telehealth in order to allow the delivery of regulated services through telehealth to additional patient populations, including especially vulnerable ones.  These suspension orders expand the types of practitioners who can use telehealth, the settings in which it can be provided, the modalities that can be used to deliver telehealth services, and the circumstances under which telehealth can be initiated.”  Further, many states have also suspended existing rules that prohibit telehealth in the absence of an existing patient-provider relationship so that patients can receive care from new providers.

 The American College of Obstetricians and Gynecologists has likewise championed telehealth as an effective substitute for in-clinic dispensing of Mifepristone that can improve patient safety and outcomes during the COVID-19 public health crisis.  Even before the pandemic, the American Medical Association passed a resolution in 2018 urging the FDA to lift the requirement because it “impedes the provision of” Mifepristone and has no “demonstrated or even reasonably likely advantage.” 

 In March, a coalition including Attorney General Frosh called on the Trump administration to waive or utilize its discretion not to enforce this Mifepristone requirement because it dictates and subsequently impedes women’s access to a medication abortion.  The coalition stressed the states’ need to ensure that women across the country have access to critical health care, including access to abortion services, without forcing them to travel and risk the spread of COVID-19.

 In 2000, the prescription drug Mifepristone, sometimes referred to as RU-486, became the first FDA-approved medication to induce medication abortions, and today still remains the only drug approved in the United States for pregnancy termination.  Since its approval, three-million women in the United States have used the medication, which entails women taking Mifepristone along with another drug to bring about an abortion.  According to the FDA, this medication “has been increasingly used as its efficacy and safety have become well-established by both research and experience.”  Women alternatively may undergo a procedural abortion that is performed by aspiration or by dilation and evacuation.

 Joining Attorney General Frosh in filing the brief are the attorneys general of California, Colorado, Connecticut, Delaware, the District of Columbia, Hawaii, Illinois, Maine, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New Mexico, New York, North Carolina, Oregon, Pennsylvania, Rhode Island, Vermont, Virginia, and Washington.