New York passes bill to protect abortion providers who send pills to states under ban
The New York State Legislature on Tuesday gave final approval to legislation providing legal protections for New York physicians to prescribe and ship abortion pills to patients in states that have banned abortion.
The measure, along with similar new laws in several other Democratic-controlled states, could significantly expand access to drug-induced abortion by allowing more patients in states that restrict abortion to terminate pregnancies at home, without having to go to states. travel where abortion is legal.
New York’s bill now moves to the office of Governor Kathy Hochul, who has indicated support for such a shield bill. The bill provides that New York courts and officials will not cooperate if a state with an abortion ban attempts to prosecute, charge, or otherwise penalize a New York healthcare provider who offers abortion via telemedicine to a patient in that state, so long as the provider complies with New York law. It was passed by the State Assembly by a vote of 99 to 45 on Tuesday night, after passing the Senate by a vote of 39 to 22 last month.
Since the Supreme Court overturned nationwide abortion rights last year, Massachusetts, Colorado, Vermont and Washington have passed legislation known as telemedicine abortion shield laws. But New York’s legislation 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 a few providers are speaking publicly, which those in other states with shield laws have so far failed to do.
“I’m going to post the 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, which answers patient questions about medication abortion. “This is the first time we can do something to fight back,” she added.
Dr. Prine said she and at least three other doctors would send pills to patients in all states with restrictions or prohibitions. A telemedicine service in New York, Juniper Midwifery, also said it hoped to use the shield law to send pills to patients in states with abortion bans.
“It’s definitely something we’d like to explore and deliver on,” said Jillian Barovick, midwife and co-founder of Juniper.
Abortion is now largely banned in 14 states. But most bans punish people who assist in an abortion, not those who take abortion pills.
More than half of abortions in the United States are now performed with drugs, using two drugs, mifepristone followed by misoprostol. Data indicates that the process is safe and effective.
Abortion opponents are seeking to force mifepristone off the market by challenging the Food and Drug Administration’s approval of the drug 23 years ago in a lawsuit expected to be decided by the Supreme Court. The lawsuit also challenges the FDA’s decision in 2021 to allow patients to receive prescription pills in the mail.
Since the overturning of Roe v. Wade, tens of thousands of patients in states with banned or severely restricted have taken abortion pills. Many have traveled to states where abortion is legal to get pills from clinics or addresses in those states where pills were mailed. But many patients cannot afford the cost and time of travel.
“Having the telemedicine option and protecting providers who provide remote abortion services will greatly help the people here in Mississippi and other limited states,” said Michelle Colón, executive director of SHERo Mississippi, an organization dedicated to supporting reproductive health. rights for people of color. “This will expand the access we so desperately need.”
Other patients receive pills by mail from abroad, either prescribed by doctors abroad, through a European telemedicine service, or ordered directly from online pharmacies in India or other countries. By the time the pills arrive, often two to three weeks later, patients may have passed the 12-week pregnancy threshold that the World Health Organization endorses for the use of drugs for abortion. Sending pills from the United States, such as doctors working under shield laws, reduces the delivery time to a few days.
Telemedicine shield laws do not guarantee full legal protection for providers. Under the law, New York would refuse to extradite her to that state if a state with a prohibition issued an arrest warrant for a doctor like Dr. Prine. But if she traveled there, or to another state that agreed to extradite her, she could face criminal charges.
“Texas could prosecute them for murder,” said Jonathan Mitchell, a former Texas attorney general and the architect of a 2021 Texas law that would ban abortion after six weeks of pregnancy and allow delegated citizens to enforce it by paying a fine of Demand $10,000 per abortion. .
“Under Texas law, the killing of a fetus by an illegal abortion is no different from the killing of an infant, except that the mother cannot be prosecuted (or charged) for the death of a fetus,” Mitchell wrote in an e-mail. -mail.
Because of the significant risks, only about 10 health care providers in states with shield laws are known to have begun sending pills to patients in states that restrict abortion. These providers have proceeded with caution.
“Most of the people who have used the shield laws so far have just dipped their toes in the water and gone to states that may not be as litigious, but I think we should just start doing it for all of them. said a doctor in New York’s Hudson Valley who plans to send pills under the new shield law, speaking on condition of anonymity because of the risk.
Other abortion providers have expressed interest in using shield laws if they could send prescriptions to a pharmacy that would ship the pills instead of stocking and shipping the drugs themselves. That option could become available in the coming months if California introduces a remote abortion shield bill passed the state Senate last month. An online pharmacy based in California, Honeybee Health, hopes to use that law to ship to all 50 states, said Jessica Nouhavandi, co-founder and president of Honeybee.
“We eagerly await the passage of the California shield law,” she said.
As providers test their states’ telehealth shield laws, many legal questions may arise, including the possibility of civil suits and challenging a provider’s medical license for unauthorized practice of medicine.
“It’s not a question of whether a provider will be taken to court,” said Rachel Rebouché, the dean of Temple University Law School, who has written in support of shield laws. “It’s a matter of when.”
Lawyers on both sides of the issue say state protection laws undermine basic principles of interstate cooperation. Instead of acknowledging one state’s arrest warrant or court order, another state actually throws a wrench in enforcing that state’s laws.
And a law that shields remote abortions disrupts the usual model for telemedicine law and policy, which “assumes you provide care where the patient is,” Professor Rebouché said.
For example, to treat a patient in Texas, a New York physician would normally first obtain a Texas medical license. If the doctor practiced without a doctor, New York Texas would generally assist in initiating disciplinary proceedings through the medical board. Without the shield law, an out-of-state ruling could affect New York’s doctor’s license.
In addition, in some cases, the U.S. Constitution requires states to enforce another state’s civil sentences. An abortion provider in New York could be sued in Texas, for example by a family member of an abortion patient, claiming damages for wrongful death of the embryo or fetus. If the plaintiff wins, the Full Faith and Credit clause in the constitution could require New York to comply with the collection of damages.
“It is very clear that citizens in other states can still sue doctors who engage in the unlawful practice of medicine,” said Denise Harle, senior counsel for the Alliance Defending Freedom, a conservative Christian legal organization that supports the anti-abortion movement. represents plaintiffs seeking to remove mifepristone from the market in their lawsuit against the FDA “They can sue to protect against evil acts of people who commit crimes.”
Malpractice insurance can also be challenging to arrange. However, New York’s shield law says that an insurer cannot drop or penalize a provider who complies with New York law in performing abortions.
To date, there are no known examples of prosecutions, lawsuits, or other actions against providers operating under telemedicine abortion shield laws. Dr. Prine and others said they were willing to be the guinea pigs, but they also took steps to protect themselves.
Most providers using shield laws say they avoid traveling to states with abortion bans. Dr. Prine said she would even ensure that there is no flight connection at an airport in a restrictive state.