(The hill) – A conflict is looming between the state’s red anti-abortion states and blue telemedicine protection laws that seek to maintain access to abortion.
More than a dozen states have laws protecting medical providers and others from out-of-state investigations and prosecutions related to abortion and gender-affirming care. But six states — Colorado, Massachusetts, New York, California, Vermont and Washington — have gone further.
These protective laws provide protection for doctors, nurses, and other practitioners who prescribe and mail abortion pills to people who live in states that ban or severely restrict abortion.
But the laws have only been in place for about a year and have never been tested in court.
Abortion opponents see this as a blatant infringement on the rights of states.
“States have a duty to protect their most vulnerable citizens and their families from harm. “A state may not interfere with another state’s efforts to protect the lives and health of its citizens – including the lives and health of unborn children and their families,” said Erin Hawley, a senior attorney at the Alliance Defending Freedom (ADF ), a right-wing legal powerhouse.
“Pro-abortion states that do not recognize the fundamental principle that life is a human right cannot undermine the laws of other states simply because they disagree with them,” she said.
Hawley and the ADF represented anti-abortion doctors in the Supreme Court seeking to restrict access to one of the two abortion drugs.
The Alliance Defending Freedom did not comment on potential legal challenges under the shield law, but advocates on both sides of the abortion divide said a court challenge was only a matter of time.
“I find it hard to imagine that there won’t be some attempts to challenge these things. And the best way to do that is probably to sue a provider,” said Greer Donley, an abortion law expert and associate professor at the University of Pittsburgh School of Law.
“This is not just a state determining its policies. This is truly a state that is trying to sabotage the governance of its neighbors,” said John Seago, president of Texas Right to Life. “It is a complicated legal and political question. But it is something we take seriously and we feel there must be some challenges.”
Providers in Shield Law states have been a go-to resource for tens of thousands of people living in red states as abortion access has been restricted in the wake of the 2022 Dobbs decision that overturned Roe v. Wade lifted, becoming more and more restricted. There are nearly 24 states that ban or restrict abortion in some way.
“The shield laws actually provide a kind of safety net to help the most vulnerable people who cannot access abortion through other means,” Donley said.
According to a modern report from the abortion rights research group Society of Family Planning, from October to December 2023, nearly 8,000 people per month in states with bans or strict restrictions received abortions from doctors working under the protection of abortion law.
The Food and Drug Administration has only allowed abortion pills to be prescribed via telemedicine since 2020, but the report found that 19 percent of all medication abortions now involve telemedicine.
“The reality is that abortion will not disappear if it is banned or criminalized. It goes underground. And what the protective laws provide is an above-ground part of the medical system and practice of offering services delivered by licensed providers using certified medications,” said Julie F. Kay, executive director and founder of the Abortion Coalition for Telemedicine.
The Shield Laws require courts and officials not to cooperate if a state with an abortion ban attempts to prosecute, sue, or punish a health care provider who provides telemedicine to a patient living in the state with an abortion ban offers abortion.
The laws have also redefined the way telemedicine is practiced. Without a shield law, a provider is only protected if both the patient and the provider are located in an abortion-friendly state. However, for purposes of a shield law, both the provider and the patient are considered residents of the same state.
Even with telemedicine protection laws, there is risk to both the provider and the patient because the pills are illegal in states that have near-total bans.
Only two organizations, Aid Access and the Massachusetts Medication Abortion Access Project (MAP), operate statewide.
A group called Abuzz delivers to some states with bans, and a modern organization in California called Armadillo also operates in states with bans, although not all states yet.
Angel Foster, director of the Massachusetts group, said the organization is prepared for possible legal challenges and has an organizational model designed to spread risk. There are different people who prescribe, order and ship pills.
“Fundamentally, our practice is based on trust, and that’s trust in patients, trust in each other, but also trust in the Shield Law and trust in Massachusetts,” Foster said. “We believe the Shield Law is strong, and we’re very confident that the Commonwealth will support us if there are legal challenges to us, whether it’s criminal, civil or licensing penalties.”
Providers themselves are also taking precautions, such as avoiding travel to states with abortion bans where they could be arrested.
“One of the fundamental characteristics of our providers is that they do not attempt to travel to states where bans or restrictions apply. They don’t go to Mardi Gras or South by Southwest. They don’t come visit if they have parents in Florida or if you know kids who are studying in the South, and that’s a real sacrifice that a lot of them make,” Kay said.
Laws protecting telemedicine are relatively modern, which is one reason Republican states have not yet challenged such a law.
Any litigation would also likely have to take place in a blue state, where the courts might not be as amiable to anti-abortion advocates.
“It’s much more likely that a court in Texas would find a way to declare the shield law unconstitutional in some way” and seek to prosecute the vendor, Donley said. “But just because the Texas court says so doesn’t mean anyone in New York has to follow it.”
“So you really have to convince the New York courts not to follow New York law, which is just an extraordinarily high burden,” Donley added.
Seago, of Texas Right to Life, said the group is looking for the right circumstances.
“That’s something we don’t want to rush into. We want to do it right. Just like the overturning of Roe v. Wade. Our organization is very aggressive, but we understand that you have to be strategic about it,” Seago said.
He predicted there will be some “significant cases” challenging shield laws next year, but noted there is only a “small coalition” of anti-abortion groups willing to take up the fight.
“There are a lot of good, effective pro-life organizations that are stuck on defense. They oppose ballot initiatives. They are trying to ensure that their statewide, pro-life officials get re-elected. And they feel more behind,” Seago said. “And that’s why we have very few partners in this fight.”
