State and Federal Policies to Increase Access to Medication Abortion

Abortion is currently legal in all 50 states. A leaked draft of an impending Supreme Court decision that may overturn the landmark case Roe v. Wade has sent shockwaves across the country, previewing the potential for states to prohibit and even criminalize access to this basic health care service.

Overturning Roe would significantly curtail the ability to get a legal abortion the U.S., but access to abortion has long been a story of the haves and have-nots. Current restrictions such as the Hyde amendment and required waiting periods for abortion patients disproportionately impact people of color, low-income individuals, and other marginalized communities.

There are pathways for policymakers to increase abortion access, including making it more affordable and accessible. Medication abortion, now accounting for half of all abortions in the U.S., can increase access by allowing patients to complete the abortion in their own home, removing some of the logistical obstacles of procedural abortion. The medication regimen—mifepristone and misoprostol—is effective and safe, and approved for use up to ten weeks into a pregnancy in the U.S. However, an individual’s ability to obtain a medication abortion may depend on federal and state regulation of both abortion and insurance. The delivery and coverage of mifepristone are subject of numerous restrictions and requirements, and the intersection of these rules can create multi-faceted obstacles for patients seeking care.* It is crucial for policymakers who want to protect abortion access to understand current barriers to care and opportunities to lower them.

Recent federal action has removed hurdles to medication abortion, but access still varies by state

Since mifepristone came onto the market in the early 2000s, it has been subject to federal restrictions that exceed those imposed on drugs that have similar safety profiles. These requirements include provider certification to prescribe the medication and, until recently, a requirement to dispense mifepristone in a health care setting (even though the medication can be taken at home). These requirements can be onerous for those who have limited access to childcare, lack paid time off of work, or are otherwise unable to travel to obtain health care.

During the COVID-19 pandemic, the FDA exercised its enforcement discretion to lift—temporarily, at first—the ban on mailing mifepristone. Last December, the FDA announced that it will permanently remove this obstacle by ending the in-person dispensing requirement of mifepristone, and allow certified pharmacies to dispense the medication. This policy significantly increases access to medication abortion by reducing barriers for both consumers and providers.

Despite this progress towards more widely available medication abortion, divergent state approaches to regulation of abortion as well as insurance coverage create a patchwork of protections for people seeking mifepristone. While several states are trying to impose additional barriers to medication abortion, there are also opportunities to expand access to this service.

Policy actions to improve access to medication abortion

Improving access to telehealth medication abortion

Telehealth provision of medication abortion can reduce obstacles to abortion care, such as lost wages from missing work to travel to a clinic. It is also a critical access point for individuals in “abortion deserts,” including areas where clinics have shut down due to burdensome state regulations, a trend that will be exacerbated if states impose outright bans. Here are some state policy decisions that can increase access to telehealth medication abortions.

Removing state laws that conflict with the new FDA policy on mifepristone

The FDA announcement that it will end the federal requirement to dispense mifepristone in person creates new opportunities for accessing medication abortion through telehealth, but many states have laws that hinder access to telehealth abortion delivery; 19 states either explicitly ban the use of telehealth for medication abortion or require physical presence of the clinician providing the medication, effectively preventing abortion patients from using telehealth. Experts have argued that state laws conflicting with FDA requirements—such as requiring in-person dispensing of mifepristone, especially when justified by alleged safety concerns—are preempted by federal law, making them vulnerable to legal challenges.

Improving insurance coverage of telehealth

In addition to removing burdensome requirements focused on abortion and mifepristone delivery, there are a number of proactive policy options for expanding access to telehealth in general, including private insurance coverage of telehealth services. For example, during the COVID-19 pandemic—when many have sought to access health care without going to a physical location—some states required payment parity for providers, prohibited insurers from imposing more stringent requirements on telehealth visits, reduced or eliminated cost-sharing for telehealth services, and limited the use of medical management techniques like prior authorization. Further, states have required coverage of audio-only telehealth visits, which are disproportionately used by non-English speakers and Black patients who are less likely to have internet access. Implementing or making permanent these COVID-era policies can help open up telehealth access for medication abortion by reducing financial barriers to care.

Eliminating provider-related restrictions

Provider licensing is a key component of telehealth access across state lines. During the COVID-19 pandemic, several states allowed out-of-state providers to deliver telehealth to residents without being licensed in that state. In addition to easing restrictions on out-of-state providers, some states are considering new protections for in-state practitioners who provide abortions—including telehealth medication abortion—to patients residing in states with hostile abortion laws.

Expanding the universe of clinicians that can prescribe and dispense mifepristone will also increase access to medication abortion. Currently, a majority of states only allow physicians to provide mifepristone, reducing access for patients seeking both in-person and telehealth delivery of medication abortion, despite evidence that that other providers, such as nurse practitioners, can safely dispense the pill.

Requiring private plans to cover abortion

Private insurance coverage of abortion also varies by state. In 2020, Affordable Care Act (ACA) marketplace customers in 33 states had no plan options that covered abortion, and over half of states barred marketplace plans from covering the service. Today, only six states require state-regulated private plans to cover abortion services, and eleven prohibit or severely restrict coverage for all state-regulated private insurance plans.

States looking to expand access to medication abortion could require state-regulated private plans to cover abortion, including marketplace plans. There is no federal law preventing marketplace plans from covering abortion as long as federal marketplace subsidies do not pay for the cost of the benefit (other than coverage for abortions in the case of rape, incest or life endangerment). States are sometimes hesitant to impose coverage mandates that go “beyond” their Essential Health Benefits benchmark for individual plans, due to the cost defrayal requirement under the ACA, but insurers estimate that covering abortion contributes only around $1 to an enrollee’s monthly premiums.

States can also improve access to medication abortion by prohibiting state-regulated private plans from imposing cost-sharing or utilization management on enrollees, which may delay or inhibit delivery of care.

Most large employers can cover abortion regardless of state restrictions

Abortion coverage is more common in employer-sponsored health insurance plans. A recent survey by KFF found that 10 percent of workers across all firms are in a plan that does not cover abortion under some or all circumstances. While certain employer plans are subject to state regulation, including state bans on private insurance covering abortion, over half of employer plans are self-funded and can cover abortion regardless of state restrictions related to insurance coverage. Despite this opportunity, the same KFF survey found that exclusion of abortion coverage was more common for workers in firms of 5,000 or more—with 17 percent of this population facing abortion exclusions in some or all circumstances—even though the vast majority of workers at firms of this size are in self-funded plans. Advocates have encouraged companies to examine their policies to ensure that they are not unintentionally excluding abortion coverage.

Covering abortion for Medicaid beneficiaries

Abortion patients are disproportionately low-income and more likely to be covered by Medicaid than other types of insurance. The Hyde Amendment, a rider attached to federal appropriations bills, prohibits federal funding for abortion services except in the case of rape, incest, or life endangerment. This severely limits abortion access for people enrolled in Medicaid, unless a state provides the money, without a federal match, to cover abortion services beyond those allowed under federal funding restrictions (as is the case in sixteen states).

States can use their own funds to provide Medicaid coverage of medication abortion, but the federal government can also act to improve medication abortion access across the country. First and foremost, Congress can heed repeated calls to remove the Hyde Amendment. Additionally, some states have improperly exceeded the Hyde Amendment’s restrictions on Medicaid coverage of abortion, suggesting a need for more stringent federal enforcement to safeguard the minimal coverage protections for people who need an abortion due to rape, incest, or life endangerment.

Funding efforts to help the uninsured access abortions

Policymakers can also improve access to medication abortion by providing funding for the uninsured and others who choose to self-pay for the service. In California, for example, Governor Gavin Newsom (D) has proposed a budget with $40 million dedicated to grants that subsidize clinicians providing care to low- and moderate-income individuals who have to self-pay for abortion services. Massachusetts lawmakers are considering a program to provide grants to grassroots organizations that help people access abortion. A New York bill under consideration would fund abortion providers to increase capacity in order to meet care needs as well as funding non-profits that facilitate abortion access for residents and those traveling to the state to access abortion care.

Takeaway

Access to abortion has always varied by zip code, not to mention income level, insurance status, and other characteristics that dictate the availability of health care. Still, the bans and the restrictions that could be imposed by states if the Supreme Court overturns Roe will further exacerbate these inequalities. Some states would criminalize abortion and lawmakers may try to prevent people from crossing state borders to access the service. Under current law, and if the Supreme Court gives states the power to outlaw abortion, medication abortion is critical to preserving and improving abortion access. Reducing the array of restrictions on delivery and insurance coverage of medication abortion can help ensure this service remains an option.

*This blog is not meant to provide legal or medical advice or a comprehensive analysis of all laws that impact abortion access. It is an overview of certain insurance-related policies that may expand access to medication abortion.