After 50,000 Mail-Order Abortions, Clinic Waits on Supreme Court
Late last month, the telemedicine abortion startup Hey Jane passed a major milestone, serving its 50,000th patient in three years. In a few weeks, it will confront a major threat to its existence: a Supreme Court case challenging its ability to mail out abortion pills at all.
Abortion pills prescribed by phone, video, or messaging apps and delivered by mail are an increasingly popular way to access abortion in the U.S., offering patients privacy, comfort, and speed. But a conservative activist organization is challenging a Federal Drug Administration policy that allows one of these medications to be dispensed via mail. If it succeeds—a distinct possibility, given the conservative makeup of the court—it would be one of the most devastating blows to abortion access since the court overturned Roe v Wade.
When Kiki Freeman, an early Uber employee and budding entrepreneur, first conceptualized Hey Jane in 2018, providing abortions entirely online seemed like a pipe dream. Medication abortions were becoming more common—accounting for more than half of all abortions in the U.S. by 2020, according to the Guttmacher Institute—and enterprising startups were using the web to deliver everything from hair loss products to Viagra. But official FDA policy on mifepristone, one of two drugs used in a medication abortion, required it to be dispensed in person, making supplying it by mail nearly impossible.
Then the pandemic hit. In 2020, as officials urged patients to stay away from hospitals and doctors’ offices, the FDA temporarily lifted the in-person dispensing requirement, making it possible for Hey Jane and a host of other telemedicine abortion startups to enter the market. The agency made the policy permanent in 2021, and even the overturn of Roe the next year did little to slow the startups’ roll: The number of states where they could legally operate shrank, but the demand for safe, private, and rapid abortion care surged.
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By the end of last year, according to data collected by the Society of Family Planning, up to 16 percent of all abortions nationwide were performed via telemedicine. Hey Jane alone accounted for 11 percent of all abortions in Vermont and Oregon, 15 percent of all abortions in Hawaii, and 18 percent of all abortions in Delaware and Virginia, according to data provided to The Daily Beast. Forty-five percent of those patients were 30 or older, and 45 percent were already parents, the company said.
Hey Jane’s medical director, Alyssa Wagner, said she was blown away by the number of patients the company could serve in a day. At the brick-and-mortar clinic where she used to work in Ohio, the staff had seen up to 35 patients in a day. At Hey Jane, the company’s five or six clinicians can see a total of up to 180 on a “slow day.”
“The fact that we can take something that’s probably been one of the most stigmatized things in health care and we can deliver it to someone’s doorstep—that adds another element of it I love,” Wagner said. “Part of what we’re doing is normalizing abortion care.”
It is perhaps no surprise that conservative activist groups would take aim at this model. The plaintiff in the Supreme Court case, the Alliance for Hippocratic Medicine, is a combination of five national anti-abortion groups incorporated conveniently inside the jurisdiction of a sympathetic district court judge. (A spokesperson for the Alliance has previously said its incorporation predated the lawsuit.) Though none of the doctors in the group actually prescribe mifepristone, they argued that the FDA failed to properly address safety concerns when it expanded access via telemedicine.
A district court judge in Amarillo and the Fifth U.S. Circuit Court of Appeals sided with the alliance in August, rolling back the expanded approval, and the FDA appealed to the Supreme Court. Oral arguments are scheduled for March 26.
Many claims about the danger of mifepristone have been found to be overblown. A study published last month in Nature Medicine found no difference in the safety of medication abortion prescribed in-person versus online, and it found that 99.8 percent of all telemedicine abortions had no serious adverse outcomes. Two studies cited by District Judge Matthew Kacsmaryk to suggest that the medication may be unsafe were recently retracted by the journal that published them.
Dr. Jamie Phifer, who runs the telemedicine startup Abortion on Demand, noted that performing an abortion with just the other drug, misoprostol, is still safe but takes much longer and has more severe side effects than the two pills together.
“It is cruel to force women to use misoprostol only when you know there is a safer, easier option,” she told The Daily Beast. “It’s punishing women for seeking routine health care.”
Telemedicine abortion is not a panacea for abortion access. The Nature Medicine study found that patients who seek this option skew more white than abortion patients overall, and the service is not covered by Medicaid. Hey Jane did not provide race or income data, but did note that 53 percent of its patients have a college degree or higher.
But telemedicine abortion has become a vital resource in a post-Roe world. A study from the University of California, San Francisco, found 43 percent of telemedicine abortion patients said their care would have been delayed without the help of abortion pills. And while the procedure isn't always covered by insurance, it can reduce costs like transportation, time off work, and the overnight stays sometimes required in states with 24-hour waiting periods.
It’s unclear what will happen to Hey Jane and its competitors if the Supreme Court curtails access to mifepristone. Some physicians are exploring “off-label” prescriptions; others may prescribe misoprostol alone.
Wagner said she isn’t concerned.
“If I let every Supreme Court decision and every smaller court decision impact my blood pressure, I definitely couldn’t survive in this work,” she said. “Nobody is better at pivoting than abortion providers.”
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