February 18, 2021
LANSING – In an effort to minimize the risk of exposure to COVID-19 and ensure patients have safe access to reproductive health care, Michigan Attorney General Dana Nessel joined a coalition of 23 attorneys general in filing an amicus brief in support of the plaintiffs’ request for a preliminary injunction in American College of Obstetricians and Gynecologists et al. v. FDA et al.
In 2020, a lower court issued a preliminary injunction halting a Food and Drug Administration (FDA) requirement that forced patients to appear in-person in a clinical setting to receive a drug known as mifepristone for an early abortion. The coalition is urging the appeals court to uphold that relief for abortion patients and modify the injunction to also cover patients seeking mifepristone for miscarriage management.
"Women who require a particular medication to properly care for their bodies should not have to face unnecessary barriers to such health care, nor should they have to put themselves at risk in the middle of a pandemic to receive the help they need,” said Nessel. “Telehealth is a viable option for these women and it can make a difference in mitigating the spread of this deadly disease as we continue to work through this public health crisis.”
The FDA’s requirements — previously halted by a lower court, and the subject of Friday’s amicus brief — force patients to appear in-person in a clinical setting to receive mifepristone, thereby heightening the risk of contracting and transmitting COVID-19 for everyone involved, including patients and health care providers. Before the pandemic, patients seeking medication abortions represented nearly 40 percent of all abortion patients in the U.S. in 2017. Additionally, about 10 percent of all clinically recognized pregnancies result in a miscarriage, some of which may be safely managed with the use of mifepristone.
The coalition specifically argues that enforcing the FDA requirements during the current public health crisis will harm patient safety and the public interest in at least two ways: 1) by conditioning access to essential reproductive health care on an increased risk of virus infection and 2) undermining the states’ ongoing efforts to manage the crisis through measures limiting unnecessary in-person contacts, such as telehealth. These measures are critical to the states’ ability to permit essential in-person activities, maintain health care capacity, and save lives — particularly as new and much more contagious variants of the virus are spreading across the country.
Since the COVID-19 pandemic emerged in the United States in early 2020, more than 27 million Americans have contracted the disease, resulting in more than 476,000 deaths. In Michigan alone, nearly 600,000 residents have received positive test results and more than 15,000 have died. In response, officials in Michigan and across the nation have instituted various emergency measures including limiting interpersonal contact and maintaining hospital capacity.
The Centers for Disease Control and Prevention (CDC) has advocated for telehealth during the pandemic, advising health care practitioners to use telemedicine “whenever possible” as “the best way to protect patients and staff from COVID-19.”
By using measures like telehealth to reduce unnecessary person-to-person contacts, states can safely provide access to essential reproductive care while reducing the risk of virus spread. In the context of reproductive care, the counseling required prior to a medication abortion is routinely and safely provided through telehealth in order to reduce in-clinic interactions.
The American College of Obstetricians and Gynecologists — a plaintiff in this case — has 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. And even before the pandemic, in 2018, the American Medical Association passed a resolution urging the FDA to lift the requirement.
In March 2020, a coalition of 21 attorneys general from around the nation called on the Trump Administration to waive or utilize its discretion not to enforce the mifepristone requirement because it impedes patients’ access to reproductive care, including medication abortions. The coalition stressed the states’ need to ensure that patients 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.
The coalition’s amicus brief follows up on three previous amicus briefs filed in this case by a coalition of states — in the U.S. District Court for the District for Maryland, in the U.S. Court of Appeals for the Fourth Circuit, and in the U.S. Supreme Court — asking those courts to issue or leave in effect a preliminary injunction suspending the FDA’s in-person requirements for mifepristone.
Joining Attorney General Nessel in filing this amicus brief are the attorneys general of California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Maine, Maryland, Massachusetts, Minnesota, Nevada, New Jersey, New Mexico, New York, North Carolina, Oregon, Pennsylvania, Rhode Island, Vermont, Virginia, Washington, and the District of Columbia.