New York passes law to protect abortion providers from shipping pills to banned states

The New York State Legislature on Tuesday finally approved legislation giving New York doctors legal protections from prescribing and mailing abortion pills to patients in states where abortions are illegal.

The measure, along with similar new legislation in several other Democrat-controlled states, could greatly expand access to drug abortion by allowing more patients in states that restrict abortions to terminate their pregnancies at home without traveling to states to have to, where abortions are legal.

The New York bill now goes to Gov. Kathy Hochul, who has indicated she supports the idea of ​​such a shield law. The bill would require New York courts and officials not to cooperate if an abortion-ban state attempts to prosecute, sue, or otherwise punish a New York health care provider who offers a telemedicine abortion to a patient in that state , as long as the provider does so complies with New York law. On Tuesday night, the state assembly passed it by a vote of 99 to 45 after being confirmed by the Senate by a vote of 39 to 22 last month.

Since the Supreme Court scrapped statewide abortion rights last year, legislation known as the Telemedicine Abortion Protection Act has been enacted in Massachusetts, Colorado, Vermont and Washington. However, the New York legislation is expected to have a significant 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 about what those in other states with shield laws have not yet done.

“I’ll be sending out pills as soon as the governor signs the bill into law,” said Dr. Linda Prine, a New York physician and co-founder of the Miscarriage and Abortion Hotline, which answers patient questions about medical abortion. “This is the first time we can do anything to fight back,” she added.

dr Prine said she and at least three other doctors would ship pills to patients in every state that has restrictions or bans in place. A telemedicine service in New York, Juniper Midwifery, also said it hopes to use the Shield Act to mail pills to patients in states with abortion bans.

“It’s definitely something we want to explore and make a reality,” said Jillian Barovick, midwife and co-founder of Juniper.

Abortion is now mostly illegal in 14 states. But most bans penalize people who assist with an abortion, not those who take abortion pills.

More than half of abortions in the United States are now medically performed, using two drugs: mifepristone, followed by misoprostol. The data shows that the process is safe and effective.

Anti-abortion activists are attempting to drive 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 2021 decision allowing patients to receive prescribed pills in the mail.

Since the annulment of the Roe v. Wade has taken abortion pills to tens of thousands of patients in states with bans or strict restrictions. Many have traveled to states where abortion is legal to obtain pills at clinics or to addresses in states where pills are mailed. However, many patients cannot afford the cost and time of travel.

“The telemedicine option and the protection of providers who offer telemedicine abortion services will be of tremendous help to people here in Mississippi and other restricted states,” said Michelle Colón, executive director of SHERo Mississippi, an organization focused on supporting reproductive rights for People of Mississippi focused color. “This will expand the access we so desperately need.”

Other patients receive pills in the 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 crossed the 12-week gestational threshold that the World Health Organization recommends for using drugs for abortion. By shipping pills from the United States, as doctors who work under protective laws do, the delivery time is reduced to a few days.

The telemedicine protection laws are not a guarantee of comprehensive legal protection for providers. When a state with a ban issues an arrest warrant for a doctor like Dr. If Prine were released, New York would, under the law, refuse to extradite her to that state. However, if she traveled there or to another state that agreed to extradition, she could face criminal charges.

“Texas could prosecute her for murder,” said Jonathan Mitchell, a former Texas attorney general and the architect of a 2021 Texas law that banned abortions after the sixth week of pregnancy and gave private individuals the power to enforce it by fines of up to sued for $10,000 per abortion.

“Under Texas law, killing a fetus through an illegal abortion is no different from killing a baby, except that the mother cannot be prosecuted (or sued) for the death of a fetus,” Mr. Mitchell wrote in an email.

Because of the significant risks, it is known that only about ten health care providers in states with shield laws have started shipping pills to patients in states that restrict abortion. These vendors have been cautious.

“Most people who’ve used the shield laws so far have just dipped their toes in the water and gone to states that might not be quite as contentious, but I think we just need to start doing it to everyone,” he said a doctor in New York’s Hudson Valley who plans to ship pills under new shield legislation, speaking on condition of anonymity because of the risk involved.

Other abortion providers have expressed interest in using shield laws if they could send prescriptions to a pharmacy that ships the pills, rather than storing and shipping the drugs themselves. That option could become available in the coming months if California passes a telemedicine abortion protections bill passed by the state Senate last month. A California-based online pharmacy, Honeybee Health, hopes to use this law to ship to all 50 states, said Jessica Nouhavandi, Honeybee co-founder and president.

“We eagerly await the passage of California’s shield law,” she said.

As providers test their states’ telehealth protection laws, many legal questions could arise, including the possibility of civil lawsuits and challenging a provider’s medical license for unlawful practice of medicine.

“It’s not about whether a provider will be challenged in court,” said Rachel Rebouché, the dean of Temple University Law School, who has contributed to pro-shield laws. “It’s a matter of timing.”

Advocates on both sides of the issue say state protection laws undermine fundamental requirements for interstate cooperation. Instead of honoring one state’s arrest warrant or court order, another state thwarts the enforcement of that state’s laws.

And a law protecting telemedicine abortions disrupts the usual model of telemedicine legislation and policy, which “assumes care is given where the patient is,” Professor Rebouché said.

For example, to treat a patient in Texas, a New York physician would typically first obtain a Texas physician’s license. Generally, if the physician practiced without a physician, New York would assist Texas through its medical association in initiating disciplinary proceedings. Without the Shield Act, an out-of-state decision could have consequences for New York physician licensing.

In addition, in some cases, the US Constitution requires states to enforce another state’s civil judgments. An abortion provider in New York could be sued in Texas, for example, by a family member of an abortion patient seeking damages for unlawful killing of the embryo or fetus. If the plaintiff prevails, New York could be required to seek damages under the Constitution’s “full faith and credit” clause.

“It’s very clear that citizens in other states can still sue physicians who engage in the unlawful practice of medicine,” said Denise Harle, senior attorney for Alliance Defending Freedom, a conservative Christian rights organization that represents anti-abortion workers who her seeking abortion pulled mifepristone off the market in her lawsuit against the FDA “You can sue to protect yourself from bad deeds by people who commit crimes.”

Getting malpractice insurance can also be difficult. However, the New York Shield Act states that an insurer cannot fire or penalize a provider who complies with New York law when performing abortions.

To date, there have been no known examples of prosecutions, lawsuits or other actions against providers operating under telemedicine abortion protection laws. dr Prine and others said they were willing to be the guinea pigs but also took steps to protect themselves.

Most providers who apply shield laws say they avoid traveling to states with abortion bans. dr Prine said she was even careful not to have a flight connection at an airport in a restrictive state.

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