How the Texas ban on mifepristone could jeopardize telemedicine for everyone

Telemedicine’s expansion during the pandemic minimized exposure and addressed the problem of health care deserts.

Roughly 20 percent of Americans live in rural areas and too often must travel long distances to receive health care. The National Rural Health Association reports the “patient-to-primary care physician ratio in rural areas is only 39.8 physicians per 100,000 people, compared to 53.3 physicians per 100,000 in urban areas.” But during the pandemic, technology, including telephone and video, bridged the care gap, allowing patients to receive critical treatment and prescriptions.

But just when we thought telemedicine and prescriptions by mail were established, some states have begun to run interference.

In efforts to ban abortion by restricting the delivery of a single medication, mifepristone, we’re witnessing a major flaw and recognizing telemedicine has a technology and jurisdictional problem.

How can a state regulate who provides treatment to people within its borders and where medication authorized by the Food and Drug Administration (FDA) and Drug Enforcement Agency (DEA) is delivered when patients can receive treatment through their smartphones and computers anywhere in the world?

While Texas can ban mifepristone, by what authority can it restrict its order and transportation through the U.S. Postal Service without challenging the way telemedicine works? The looming question for legislators: Is banning a single medication worth jeopardizing the convenient and cost-effective health care telemedicine provides for millions of Americans?

Telemedicine and the ability to receive prescriptions by mail is not just good health care, it’s good business. The National Institutes of Health estimates that 25 percent of all prescriptions were filled by mail in 2022. Well-established pharmacies like Walgreens and CVS have expanded their mail-order services, Amazon has gotten into the mail-order pharmacy business through the acquisition of PillPack in 2018, and new companies like Nurx, Teledoc Health and PlushCare have emerged that combine virtual health care with prescriptions by mail. The Veterans Affairs Department launched its Meds by Mail program in 2009, and it now provides about 80 percent of all outpatient prescriptions by mail to veterans in all U.S. territories. Some insurance providers encourage mail order by minimizing or eliminating co-pays completely for mail order maintenance prescriptions.

The law requires doctors to practice only in states where they are licensed, but doctors rely on telemedicine patients to tell them where they are located to ensure that they are not practicing in a state without a license. Requiring these providers not only to comply with the FDA, DEA and Postal Service requirements but also to note state-by-state where doctors are located, patients are located and where prescriptions are being mailed every single time a prescription is dispensed by mail would interfere with telemedicine efficiencies. 

Texas’s attempt to ban a single drug by mail order highlights the problems with a decision like Dobbs, mandating a state solution in a world increasingly connected nationally and globally by technology. The example of telemedicine shows how a single state ban can become a de facto national ban for patients with limited access to health care. Allowing this situation to persist gives a single state more authority than it is intended to have. 

Texas does not have the right to inspect a person’s mail without a warrant, nor does it have the right to restrict what someone puts in the mail as the Postal Service is federally administered. To avoid a violation of Texas’s ban on mifepristone, and to make a single state’s law become a national law, may require a company to simply stop doing mail-order and telemedicine business in Texas completely.

This outcome would be harmful to the millions of Texans in rural and urban areas who are more than an hour away from health care. If this issue makes it to the U.S. Supreme Court, the justices will be forced to consider not only Texas’s right as a state to ban the use of abortifacients, but also the right of companies to do legal business approved by multiple federal agencies in all 50 states free of state or regional restrictions.

Siding with Texas could eliminate access to health care for millions of Americans. The court must decide whether a single state’s interests can be allowed to destroy an industry and to eliminate a public good. To bend to the will of Texas would contradict the court’s stated intentions of the majority in Dobbs: to allow each individual state to decide how it would like to regulate abortion. The court cannot allow Texas’s ban to stand.

Carliss Chatman is an associate professor of law at Southern Methodist University Dallas Dedman School of Law.