by Tamara K Hervey, Sally Sheldon
International Journal of Gynecology and Obstetrics 2019;145(1/April):125-28
DOI: 10.1002/ijgo.12738 (Open access)
This paper analyses an important set of legal issues raised by the telemedical provision of abortion pills. Focusing on the case of European Union (EU) law, it suggests that a properly accredited doctor seeking to treat a patient with abortion pills is entitled, in principle, to rely on EU rules of free movement to protect their access to patients in other member states, and women facing unwanted pregnancies likewise have legal rights to access the services thus offered. EU countries seeking to claim an exception to those rules on the basis of public health or the protection of a fundamental public policy interest (here, the protection of fetal life) will face significant barriers.
From the Introduction
This article explores one set of legal challenges raised by the interplay of two technologies. First, reliance on electronic media opens up the possibility of telemedicine, involving the provision of healthcare services in situations when the health professional and the patient are not in the same location. Second, safe, effective treatment protocols now exist for medical abortion (when a pregnancy is ended using mifepristone and misoprostol—collectively referred to below as ‘abortion pills’). Combined, these two technologies open up the possibility of telemedical abortion services. The clinical issues raised by this possibility have been widely considered, but the regulatory issues far less so.3 Much discussion of abortion law has, quite properly, been framed within international human rights norms. Here we consider something different and far less well explored. How does transnational trade law apply to the situation when telemedical abortion services cross national boundaries to enable a woman resident in a country where abortion is illegal or highly restricted to end an unwanted pregnancy? Can residents of these countries rely on transnational trade law to assert rights to receive telemedical abortion services? And can health professionals claim a legally protected right to treat them? While this discussion raises issues that resonate in other regional contexts and other regulatory frameworks, we focus on how these issues might play out within the European Union.