Telemedicine abortion has become one of the most popular methods of providing abortion access since the increase in abortion bans and restrictions after the fall of Roe.
Telemedicine shield laws provide some protection for clinicians licensed in abortion-friendly states to offer services to patients in abortion-restricted states without requiring the expense and disruption of travel.
Telemedicine shield laws are an effective way for legislatures to provide some legal protection from criminal and civil liability for medical providers who seek to provide the full range of reproductive health care services to women and pregnant people nationwide.
These providers are acting in response to the dramatic decrease in services for the most marginalized communities as a result of the Supreme Court decision to overturn Roe v. Wade. Providers practicing in states where abortion remains legally available are seeking to serve those denied abortion access elsewhere because they view access to abortion as a human right.
By Julie F. Kay, JD
What does a telemedicine shield law do?
Telemedicine shield laws provide some legal protection from criminal and civil liability and licensing censure for medical providers who seek to provide reproductive health care services across state lines in response to the dramatic decrease in abortion access after the overturn of Roe v. Wade.
Abortion-friendly states have passed a variety of laws to protect abortion providers and to facilitate access for patients located in the state or traveling to the state. Currently, only eight states provides protection for telemedicine abortion providers who treat patients physically located in another state where the provider is not licensed. We need more states to pass telemedicine shield laws to provide similar protection for in-state medical professionals.
What are the basic protections shield laws can provide?
Telemedicine shield laws provide some protections from criminal prosecution, civil claims, and licensing or malpractice censure or revocation for providers of abortion located in a shield state. These shield laws pledge that state officials will not actively participate or be complicit in actions against providers of legally protected reproductive health care.
Telemedicine shield laws unfortunately will not provide direct legal protection for patients in states where abortion is banned or criminalized. However, by expanding shield laws to cover telemedicine for patients who cannot or choose not to travel to states providing abortion care, telemedicine shield laws help patients to have direct contact with licensed medical providers offering affordable, confirmed FDA-approved medications in a timely manner and not subject to investigations within the shield state. Treating patients through telemedicine to restricted states can significantly reduce the cost and burden of travel to individuals, and for abortion funds and supportive states.
Against what types of legal actions do shield laws provide protection?
A shield state licensed provider, located in the shield state during the entirety of providing a telemedicine patient with legally protected healthcare, is protected because state officials will not cooperate or assist in any of the following actions brought against the telemedicine provider:
1) extradition of the provider (removal from the shield state to a state where abortion is illegal);
2) investigation or inquiry from out-of-state officials, including out-of-state subpoenas, deposition notices, summons and others mechanisms or
3) attempts to revoke or censure a provider’s shield state professional license.
A shield state provider subjected to a civil lawsuit filed by a person from out-of-state when that care was provided by telemedicine from a shield state has legal recourse. A “clawback” provision may allow the telemedicine provider to file an opposing lawsuit against the out-of-state person.
Medical malpractice insurers may not discriminate in coverage for shield state licensed health care professionals offering legally protected reproductive health care from the shield state to patients located outside of the state.
Telemedicine shield laws have been well researched and designed to not create conflicts with federal or constitutional law. These shield laws stand on firm constitutional ground. They do not create conflicts with federal extradition laws nor with the Constitution’s full faith and credit doctrine. Shield laws also comply with existing civil law procedures between states.
What happens if medication abortion (mifepristone) is taken off the market?
Despite the fact that the FDA has approved mifepristone (1 of the 2 medications commonly used in medication abortion) as a safe and effective option, anti-abortion state officials have banned or restricted access to mifepristone and threaten to restrict it even further. If FDA-approved mifepristone is unavailable, the need for direct access to telemedicine providers who can counsel and provide a safe alternative is expected to increase dramatically. For this reason, prescribing by telemedicine is all the more urgent.
