The New York State Legislature has officially passed a legislation that offers legal protection to doctors in New York to prescribe and deliver abortion pills to patients residing in states where abortion is outlawed. This new law, along with similar laws in other Democrat-controlled states, has the potential to greatly expand access to medication abortions by allowing patients in restrictive states to terminate pregnancies from the comfort of their own homes, without having to travel to states where abortion is legal.
The bill will now be sent to Governor Kathy Hochul, who has shown support for the concept of a shield law. The legislation specifies that New York courts and officials will not assist if a state with an abortion ban attempts to prosecute or sue a New York healthcare provider who offers abortion services through telemedicine to a patient in that state, as long as the provider adheres to New York law. The bill passed the State Assembly with a vote of 99 to 45 and cleared the Senate with a vote of 39 to 22.
Over the past year, laws known as “telemedicine abortion shield laws” have been implemented in Massachusetts, Colorado, Vermont, and Washington following the Supreme Court’s decision to end nationwide access to abortion. However, New York’s law is expected to have a significant impact. Several providers in New York have expressed their intention to send abortion pills to patients residing in all states with restrictions or bans, which is a level of openness that providers in other states with shield laws have not yet displayed.
Dr. Linda Prine, a New York physician and co-founder of the Miscarriage and Abortion Hotline, plans to begin mailing pills as soon as the bill is signed into law. She stated, “This is the first time we’re able to do something to fight back.” Dr. Prine and at least three other doctors will send pills to patients in states where abortion is restricted or banned. Additionally, Juniper Midwifery, a telemedicine service in New York, hopes to utilize the shield law to send pills to patients residing in states with abortion bans.
Currently, abortion is mostly prohibited in 14 states. However, most bans target individuals who assist with abortions rather than those who undergo the procedure using medication. More than half of abortions in the United States are now performed using medication, involving the combination of two drugs: mifepristone and misoprostol. Data supports the safety and effectiveness of this process.
Opponents of abortion are attempting to remove mifepristone from the market by challenging the FDA’s approval of the drug 23 years ago in a lawsuit that is expected to be decided by the Supreme Court. This lawsuit also challenges the FDA’s decision in 2021 to allow patients to receive prescribed pills by mail.
Since the overturning of Roe v. Wade, tens of thousands of patients in states with bans or severe restrictions have relied on abortion pills. Many have had to travel to states where abortion is legal in order to obtain pills at clinics or addresses where pills were sent via mail. However, the financial and logistical burdens of traveling pose obstacles for many patients.
Telemedicine abortion shield laws provide some legal protection for providers; however, they are not foolproof. According to the legislation, if a state with an abortion ban issues an arrest warrant for a physician, New York will refuse to extradite that individual to the banning state. However, if the physician were to travel to or be extradited to another state, they could face criminal charges.
Given the risks involved, only a small number of healthcare providers in states with shield laws have started sending pills to patients in states with abortion restrictions. These providers have proceeded cautiously. Nevertheless, doctors in New York are prepared to take on the risks associated with sending pills under the new shield legislation.
Other abortion providers have expressed interest in using shield laws if they could send prescriptions to a pharmacy that would deliver the pills instead of stocking and shipping the medication themselves. This option may soon become available if California enacts a telehealth abortion shield bill, which recently passed the state Senate. Honeybee Health, an online pharmacy based in California, hopes to deliver pills to all 50 states once the law is in effect.
As healthcare providers test the waters with telehealth shield laws, potential legal issues may arise, such as civil lawsuits and challenges to providers’ medical licenses for unauthorized practice of medicine. The laws also disrupt the typical model for telemedicine law and policy, which assumes that care is provided in the same location as the patient.
State shield laws undermine the basic principles of interstate cooperation, according to lawyers on both sides of the abortion debate. Instead of recognizing arrest warrants or court orders from other states, one state effectively hinders the enforcement of another state’s laws. Furthermore, a law that shields telehealth abortions challenges the traditional framework for telemedicine law and policy, which typically assumes that care is provided in the patient’s location.
Treating patients in a different state usually requires a doctor to obtain a medical license in that state. If a doctor practices without the necessary license, their home state would typically assist in initiating disciplinary actions through its medical board. Without a shield law, an out-of-state ruling could have consequences for a doctor’s license in their home state.
Additionally, certain cases may require states to enforce civil judgments from other states, as mandated by the Full Faith and Credit Clause in the U.S. Constitution. For example, an abortion provider in New York could potentially face a lawsuit in Texas by a family member of a patient seeking damages for wrongful death of the embryo or fetus. If the plaintiff were to win the case, New York may be obligated to collect the awarded damages.
Obtaining malpractice insurance can also be difficult in these circumstances. However, the shield bill in New York states that an insurer cannot penalize or drop a provider who complies with New York law regarding abortion services.
To date, there have been no known instances of prosecutions, lawsuits, or other actions taken against providers operating under telemedicine abortion shield laws. Dr. Prine and other providers anticipate that they may become test cases for the effectiveness of these laws.
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