The New York State Legislature on Tuesday gave final approval to legislation that provides legal protection for New York doctors to prescribe and ship abortion pills to states where abortion is illegal.
The measure, along with similar new laws in several other states controlled by Democrats, could expand access to medication abortion by allowing more patients in states that prohibit abortions to do so at home without traveling to states where abortions are available. is legal.
The New York bill now heads to the desk of Gov. Cathy Hochul, who has indicated she supports the idea of such a shield law. The bill states that if a state with an abortion ban attempts to prosecute, prosecute, or otherwise punish a New York health care provider who offers an abortion via telemedicine to a patient in that state, New York courts and authorities will not cooperate, unless the provider complies with New York law. On Tuesday evening, it passed the state assembly by a vote of 99 to 45, after clearing the Senate by a vote of 39 to 22 last month.
Since the Supreme Court struck down nationwide abortion rights last year, Massachusetts, Colorado, Vermont and Washington have enacted legislation known as the Telemedicine Abortion Shield Act. But New York’s law is expected to have a notable impact. Several providers in New York say they plan to ship abortion pills to patients in all restrictive states, and some providers are speaking publicly, which is something other states with SHIELD laws haven’t done yet.
“I’m going to mail pills as soon as the governor signs the bill,” said Dr. Linda Prine, a New York physician and co-founder of the Miscarriage and Abortion Hotline. “This is the first time we’ve been able to do something to fight back,” she said.
Dr. Prine said he and at least three other doctors will ship the pills to patients in all states with no restrictions or restrictions. Juniper Midwifery, a telemedicine service in New York, also said it hopes to use the SHIELD law to mail pills to patients in states with abortion restrictions.
“It’s definitely something we want to explore and make possible,” said Jillian Barowick, midwife and co-founder of Juniper.
Abortion is now illegal in most 14 states. But most sanctions punish those who assist in abortions, not those who take abortion pills.
More than half of abortions in the United States are now performed with medication, using two drugs, mifepristone followed by misoprostol. The data indicates that the procedure is safe and effective.
Abortionists are trying to drive mifepristone off the market by challenging the Food and Drug Administration’s approval of the drug 23 years ago in a lawsuit to be decided by the Supreme Court. The suit also challenges the FDA’s decision in 2021 to allow patients to receive prescribed pills by mail.
Rowe v. Since Wade’s overturning, thousands of patients have taken abortion pills in states with banned or severe restrictions. Many have traveled to states where abortion is legal to obtain the pills at a clinic or to the state address where the pills were sent by mail. But many patients cannot afford the cost and time of travel.
“The telemedicine options and safety of providers who are providing telemedicine abortion services are going to be a tremendous help to people here in Mississippi and other proscribed states,” said Michelle Colon, executive director of Shero Mississippi, an organization that advocates for reproductive rights for people. focused on supporting Colour. “It will expand access, which we desperately need.”
Other patients receive pills in the mail from abroad through the European telemedicine service, either prescribed by doctors abroad or by ordering directly from online pharmacies in India or other countries. By the time the pills arrive, often two to three weeks later, patients can cross the 12-week pregnancy threshold that World Health Organization supports To use medication abortion. Mailing pills from within the United States, as doctors working under SHIELD laws are doing, shortens the delivery time to a few days.
Telemedicine Shield laws do not guarantee full legal protection for providers. Under the law, if an embargoing state issues an arrest warrant for a doctor like Dr. Prine, New York will refuse to extradite him to that state. But if she travels there or to another state that agrees to extradite her, she could face criminal charges.
“Texas could prosecute him for murder,” said Jonathan Mitchell, a former Texas solicitor general and architect of the 2021 Texas law. ,
“Under Texas law, killing a fetus through an illegal abortion is no different from killing a child, except that the mother cannot be prosecuted (or prosecuted) for the death of the fetus,” Mr. Mitchell wrote in an email.
Because of the substantial risks, only 10 health care providers in states with SHIELD laws have begun shipping the pills to patients in states that prohibit abortion. These providers have proceeded with caution.
“Most of the people who have been using shield laws so far are just dipping their toes in the water, going into states that maybe aren’t quite as controversial, but I think we need to do it for all of them.” need to start.” said a doctor in New York’s Hudson Valley who plans to ship pills under the new shield law and spoke on condition of anonymity because of the risks involved.
Other abortion providers have expressed interest in using shield laws if they can ship prescriptions to a pharmacy that will mail the pills instead of stocking the drugs and sending them themselves. This option could become available in the coming months if California enacts a telehealth abortion shield bill. pass State Senate last month. Honeybee Health, an online pharmacy based in California, hopes to use that law to ship to all 50 states, said Jessica Nauhavandi, co-founder and president of Honeybee.
“We are anxiously awaiting passage of the California Shield legislation,” she said.
As providers test their states’ telehealth shield laws, several legal questions may arise, including the potential for civil suits and challenges to a provider’s medical license for the unauthorized practice of medicine.
“It’s not a matter of whether the provider will be challenged in court,” said Rachel Rebouch, dean of Temple University Law School. written In support of shield laws. “It’s a matter of when.”
Lawyers on each side of the issue say that state shield laws undermine the basic premises of interstate cooperation. Instead of recognizing one state’s arrest warrant or court order, the other state effectively throws a gap in the enforcement of that state’s laws.
And a law that shields telehealth abortion disrupts the typical model of telemedicine law and policy, which “presupposes that you’re providing care in the place where the patient is,” Professor Rebouche said.
To treat a patient in Texas, for example, a New York physician must first obtain a Texas medical license. If the doctor practices without one, New York will generally follow Texas by initiating disciplinary proceedings through its medical board. Without a shield law, an out-of-state judgment could have consequences for a doctor’s license in New York.
Furthermore, in some cases, the US Constitution requires states to enforce civil judgments of another state. An abortion provider could be prosecuted in New York In Texas, for example, claiming damages for the wrongful death of an embryo or fetus by a family member of an abortion patient. If the plaintiff wins, the Full Faith and Credit Clause in the Constitution could oblige New York to recover damages.
“It is very clear that in other states, citizens can still sue doctors who engage in the illegal practice of medicine,” said Dennis Harley, senior attorney for the Alliance Defending Freedom, a conservative Christian legal organization that represents anti-abortion plaintiffs. represents. remove mifepristone from the market in their lawsuit against the FDA “They can sue to protect against bad actions by people who commit crimes.”
Arranging for malpractice insurance can also be challenging. New York’s Shield Bill, however, states that an insurer cannot exclude or penalize a provider who complies with New York law in providing abortions.
To date, there have been no known examples of indictments, lawsuits, or other actions against providers operating under the telemedicine abortion shield laws. Dr. Prine and others said they were prepared to be guinea pigs but were also taking steps to protect themselves.
Most providers using shield laws say they are avoiding travel to states with abortion restrictions. Dr. Prine said she will also ensure that there are no flight connections at airports with restrictive conditions.