Some abortion advocates celebrated after the U.S. Food and Drug Administration (FDA) on Jan. 3 finalized a rule that allows certified retail pharmacies to dispense abortion medications. But the policy may not expand abortion access as much as supporters hope, some experts say.
“There isn’t really a great change happening,” says Robin Marty, author of The New Handbook for a Post-Roe America and director of operations at a reproductive health center in Alabama that offered abortion care until it was banned in the state. “It’s just a good headline.”
The FDA’s update doesn’t change the fact that about a dozen U.S. states—including Alabama, Texas, and Tennessee—currently enforce abortion bans, says Greer Donley, an associate professor at the University of Pittsburgh Law School who specializes in abortion-related issues. Those bans apply to medication abortions as well as surgical ones, so state laws will still prohibit pharmacies from dispensing drugs for abortions.
“The fact that the FDA is permitting this does not mean that states are not going to ban [medication abortion] themselves, which is what [many] have already done,” Donley says.
Some states have placed restrictions specifically on abortion pills, which are authorized for use in the first 10 weeks of pregnancy. It’s legally murky territory: The Justice Department recently said it is legal for the U.S. Postal Service to deliver abortion medications even in states where they are banned, but it would still be illegal for people to use them to end a pregnancy where doing so is prohibited by state law. However, the group Aid Access (which is based outside of the U.S.) mails abortion pills even to people living in states where they are illegal.
Kirsten Moore, director of the Expanding Medication Abortion Access Project, says it’s “complete bullshit” that states are blocking access to FDA-approved drugs and “frustrating” that pharmacies in restrictive states can’t provide abortion pills. But she hopes putting medications in pharmacies located in states where abortion is legal will still help access trickle down to people in other states.
If people can get abortion pills from retail pharmacies, they may not need to visit abortion clinics, freeing up appointments for others, Moore says. It may also be easier for people living in restrictive states to travel to an out-of-state prescriber and pharmacy than a brick-and-mortar clinic, which are scarce in some parts of the country.
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But even in states where abortion remains legal, Donley doubts whether some pharmacies will go through the trouble of getting certified to provide abortion medications. The certification process is required for pharmacies to dispense mifepristone, one of the two drugs used together in a medication abortion. The other medication, misoprostol, is not regulated as strictly and was already available for other uses by prescription in pharmacies.
To become certified, a pharmacy must meet a number of regulations spelled out by the FDA. These specifications relate to record-keeping, adverse-event reporting, and more. Pharmacies must also appoint a representative to ensure mifepristone is distributed in compliance with the FDA’s policies, including verifying that prescriptions come from providers who have completed their own certification process. To prescribe mifepristone, providers must complete paperwork that confirms their ability to assess pregnancies and provide surgical abortion care, if necessary.
Before the pandemic, mifepristone could only be dispensed in-person by a provider with this certification, and only after the person seeking an abortion filled out a consent form. In December 2021, the FDA lifted the in-person requirement, paving the way for remote prescription. But the agency replaced that requirement with a new one: that pharmacies—not just providers—must become certified before they dispense mifepristone. The FDA’s recent update finalizes that rule change and spells out requirements for certified pharmacies.
Walgreens and CVS, which each operate thousands of locations across the U.S., both reportedly plan to seek certification in states where it is legal to dispense abortion drugs. Almost 80% of people in the U.S. live within 10 miles of a CVS, according to Quartz reporting from 2017, and about the same percentage live within five miles of a Walgreens, the company says. While people in states where abortion medications are banned won’t benefit from that proximity, in-pharmacy access may cut down on travel times for people living in or near states where abortion is legal.
To have an even stronger impact on access, Marty feels mifepristone should be available in pharmacies without a prescription (similar to the morning-after pill) given its strong safety record. But, she says, that scenario is unlikely to become reality anytime soon.
For now, Moore says it’s a step in the right direction for abortion medications to be available in pharmacies at all, even if it doesn’t revolutionize abortion access overnight. “We are moving what has been a very niche product…into the mainstream,” Moore says. “That’s really important.”
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Contributor: Jamie Ducharme