The Future Of Telehealth Abortions

0:07There were more than a million abortions in the US last year. A quarter of those were done via telehealth. That's according to a June report from the Society of Family Planning. That's when a provider in a state where abortion is legal meets with a patient virtually and sends them pills to take at home to end a pregnancy. Those patients come from states all over the country, including those with abortion bans. Now, attorneys general in Texas and Louisiana are suing a doctor in New York for prescribing pills to patients in their states where abortion is almost completely banned. New York is one of several states that has enacted shield laws after the overturning of Roe v.

0:43Wade. Shield laws protect abortion practitioners from being jailed or fined for treating patients in other states through telehealth. Now that conversation has evolved into a battle between states. The Supreme Court is expected to weigh in on the issue soon, and its decision could drastically change access to abortion nationwide. So what's at stake in this case, and how do states' rights become the latest flashpoint in the battle over abortion access? We get into all that and more after this short break. I'm Jen White. You're listening to the 1A Podcast. Stay with us.

1:19Joining us from San Francisco, California, is Brittany Fredrickson. She's the Associate Director for Women's Health Policy at KFF. Brittany, welcome to the program. Good morning, Jen. Also with us is Rachel Reboucher. She's a law professor at the University of Texas School of Law. She's also a leading scholar in reproductive health law and family law. She joins us from New York. Rachel, welcome. Thank you. Thanks for having me. And Shefali Luthra. She's a reproductive health reporter at the 19th. That's an independent nonprofit newsroom reporting on gender, politics, policy, and power. Shefali, it's always great to have you.

1:53It's great to be here. Shefali, just set the scene for us. How would you describe the state of the nation's patchwork of abortion laws right now? I think patchwork is a perfect word for describing the world in which we live at the moment. We have laws in some states that are very protective and access to abortion that is relatively robust. And then in other states, we have laws that are among the most restrictive in the world. And so what we see is people trying to access abortion, even when they live under bans. Sometimes that is traveling to another state, a very expensive, often very long, difficult journey, or getting abortion pills in the mail through telehealth.

2:30This has become a source of real frustration for abortion opponents on state levels and on national levels who really thought that their bans would end or at least significantly reduce abortions in their states. And so as a result, we are seeing this growing campaign to stop people from getting around abortion bans, and in particular, this campaign to limit access to abortion pills. And that's what we're seeing with cases like the Texas case, the Louisiana case. It is also the center of the activism efforts being made by national and local anti-abortion groups. Brittany, some people may come into this conversation not realizing just how many people seeking abortions in the U.S.

3:09rely on telehealth. How has the role and prevalence of telehealth abortion care changed since the Supreme Court overturned Roe v. Wade? Yeah, one in four abortions are now by telehealth and two-thirds of abortions are medication abortions. And there's been this tremendous growth because abortion has been banned in so many states, and this is a safe and accessible option. Mifepristone, one of the two drugs involved in a medication abortion, was approved by the FDA 25 years ago, and prior to 2021 had to be dispensed in person only by certified physicians. However, in 2021, largely driven by research showing that telehealth medication abortion was safe and effective, and the rapid switch to telehealth during the pandemic, the FDA changed the rules so that it no longer had to be provided in person.

3:58And this allowed medication abortion to be mailed. And after Dobbs allowed medication abortion to be mailed by shield law providers in states where abortion was legal to states where abortion was banned. Rachel, Texas Attorney General Ken Paxton is suing a doctor in New York who prescribed abortion pills via telehealth to a patient in Texas. And abortion is almost completely banned in that state. Walk us through this case. What does each side argue? So the attorney general of the state of Texas has sued civilly for damages for a fine, a doctor in New York. And Texas claims that this physician, by prescribing medication abortion pills to a resident of Texas, is in violation of Texas's abortion law and Texans' licensure law, the statute in Texas that sets out who receives a license under the state medical board.

4:58New York and the doctor in New York argue that the doctor is acting under New York's shield law, and that shield law protects the physician in providing protected legal reproductive health care, which includes medication, abortion, whether or not the patient is in New York or anywhere else, regardless of patient location. So New York and the doctor at issue argue that they are acting completely legally under the democratically passed law in New York. its shield statute. So there's the, you know, there are the different conceptions from New York or Texas perspective of which law should apply. Now, you said this is a civil case, not a criminal one.

5:49What does that mean for the state of Texas and what it has to prove and for their standing to bring this lawsuit in the first place? So, you know, Texas is not bound by any other state Shield law. And what happened in Texas is that the state sued civilly, which means that it's not a criminal case. They're not prosecuting the doctor at issue. They are, under their abortion law, suing for essentially fines for a penalty for being in violation of the law. And that's just what happened. A Texas county court entered a judgment against the doctor in New York for over $100 ,000 in fines under Texas abortion and licensure laws and in attorney's fees.

6:38And the reason that's significant is because it's a default judgment, which means that, as is the doctor's right, she did not have to appear in Texas to defend the lawsuit. Texas, the court entered it in her absence, which can't happen in a criminal case, in a criminal case if you're being prosecuted, which is what's happening in Louisiana. You have to be in person. It's your constitutional right to defend yourself against the charges of the state. But this is a default judgment. And now what we're seeing is the attorney general asking New York to enforce the judgment of a Texas court in New York courts against the doctor at issue because that doctor has never stepped foot in Texas, has no assets in Texas.

7:28And so they're asking the place where the doctor lives to essentially ensure that that physician pays the over$100 ,000

7:43in fines. We got this question from Jerry who says, I don't understand how one state can force residents of another to obey their laws. And Rachel, what we're hearing there is that that's really the core question that's being asked in this case. How do shield laws work in practice? Is this a unique application? It's not necessarily. I mean, interstate conflict or disagreement about public policy such as abortion law is not unique. It's not the first time that states have had deep disagreement about social and political issues of import. But this is in at least the realm of abortion law, which states have disagreed about for a very long time now.

8:34Shield laws essentially react to just what you've described, the concern that states that have banned abortion like Texas will try to apply their laws outside of their state borders. And we saw this before Dobbs, the case that overturned Roe v. Wade that the Supreme Court decided. We saw that states were intimating that they would try to control travel outside of their states for legal abortions elsewhere, that they'd enact other policies that extend their bans across borders. And so shield laws are a response to that concern. Shield laws, like in New York, preclude the state of New York from helping another anti-abortion state from prosecuting, investigating, suing, penalizing, punishing a doctor or someone who helps the provider in the shield state from these out-of-state attacks.

9:40Now, they're not Shields in the sense that it's a free-for-all. You have to be licensed in the Shields state. You have to be acting under the statute. You have to be providing legal care within the state. But it's to try to stop out-of-state attacks from states that have differing abortion policies. Let's take a quick pause here. We'll be back with more of the conversation in just a moment. Stay with us.

10:11Let's get back to our discussion with this message we got from one of you who writes, Me and my partner, we got access to Mifepristone through telehealth. We got it from another state and the shielding laws that they have for the physicians in that state. I wonder how those will hold up in court or otherwise. I want to make sure that those doctors aren't going to be prosecuted or basically saving us from what could have been potentially very life-altering decisions that we wouldn't even be able to make. And thanks for that message. I want to get to that question in a moment, but first, the abortion drug the listener refers to there is called mifepristone.

10:43And that prescription pill is part of a two-step regimen that doctors typically prescribe for abortions, often alongside misoprostol. Brittany, briefly, how are these pills used in women's health care? Yeah, so they're largely used for abortion. Mifepristone works by blocking progesterone and kind of stopping the pregnancy from progressing. and then misoprostol allows the pregnancy to expel from the body. So this is one way they're used, but they're also used to treat miscarriages. And I think a lot of people don't realize that. And then misoprostol is used for a number of other things. It's used in everyday labor and delivery.

11:28It's also used to treat rheumatoid arthritis and osteoarthritis. And so whenever you're trying to limit these drugs, you're also limiting drugs that people are relying to control their chronic conditions. Shepali, what have the doctors you've spoken to said about how the current legal landscape for abortions affects their work right now? And we should note that the civil case in Texas isn't the only case pending over telehealth abortions. Louisiana's Attorney General Liz Murrell is bringing a criminal case against the same New York doctor named in the Texas lawsuit. and Texas former Solicitor General Jonathan Mitchell has filed two civil suits intended to strike down the mailing of abortion pills.

12:07We'll talk a bit more about those later, but go ahead. It's a moment of a lot of uncertainty for many of the doctors I've spoken with. And to be clear, when they began providing abortions through shield laws, many of them were very aware of what the legal risks were and they decided to do this work anyway because they think it's really important. And they've made a lot of trade-offs. they don't travel to states where they worry about the risks to abortion providers like themselves. I've spoken to one physician who just won't go to Texas because she knows it is not worth the risk to her legally, personally, etc.

12:42That said, as these threats are ramping up, as we are seeing more legal action, I have heard from some providers that they are noticing a different kind of chilling, more of a concern that maybe this is something they will have to stop offering or that their peers will stop offering. And one point that I think is really important is that there aren't actually that many Shield Law providers offering this care given how many patients are getting abortions through the mail. And so when we lose even a couple of those providers because of the legal risks, that can have really meaningful implications for how many patients are able to keep getting timely and helpful abortion care through the mail versus might have to go through other mechanisms to keep getting this.

13:29Well, Brittany, what do we know about who will be most affected if telehealth abortion care becomes less available? Yeah, so definitely people that are living in these states where there are bans and there is no other access to abortion. So if they don't have access to these telehealth medication abortions through shield providers, shield law providers, they will have to travel out of state. And we know that, you know, people in these states may not have the means to do that. Women of color are disproportionately affected, low-income women, women with Medicaid, and it's just not always feasible to travel.

14:07And if you're living in the southeastern part of the U.S., there isn't a nearby state that you can actually travel to to get an abortion. So it makes it very challenging for people. You may not be able to take off of work and have child care and lots of other things that make this very limiting. Well, as we mentioned, the battle between Texas and New York is just one of the legal fights over telehealth abortion. Louisiana's Attorney General Liz Murrell is bringing a criminal case against a New York doctor who prescribed abortion pills to a patient in Baton Rouge. Here's what Murrell said about the case in February.

14:42It is not any different than if she had sent fentanyl here. It's really not. She sent drugs that are illegal to send into our state. and she sent them to somebody she had never seen before, knew nothing about, and had no doctor-patient relationship with. Earlier this year, a Louisiana grand jury indicted the New York doctor for criminal abortion, which is a felony in the state. But New York Governor Kathy Hochul says she will not extradite that doctor. Rachel, first, what types of penalties would this doctor face if convicted in Louisiana? So the doctor could face jail time. That would be the likely result.

15:20Again, would need to stand trial in Louisiana, be convicted in a Louisiana court. But there's certainly steep consequences, as in many of these abortion ban states, to violating a state's abortion law. Now, the Constitution requires that states honor the judicial proceedings of other states. So how do shield law protections run up against the full faith and credit clause in the Constitution? So it's a great question because there's, you know, the full faith and credit clause really comes to really bears on civil cases like the one brought by Texas, where there's a judgment entered against an individual that a state or an entity ask another state, the state that didn't enter the judgment, to enforce that judgment.

16:14And that implicates the full faith and credit clause of the Constitution. In the Louisiana case, you know, what's essentially happening is there's not a case, There's not a decision entered until New York would extradite the doctor to stand trial in Louisiana. And that's, as you said, New York's governor in New York has said, we're not extraditing. Just worth clarifying that there's also a constitutional provision that requires extradition of people from one state to another, but only if that person's fleeing from justice. And that means that basically a person was in Louisiana, committed a crime and then fled the state.

16:58The state to which they fled has a constitutional obligation to extradite. And that's not what's happened here. The doctor was never in Louisiana, hasn't fled Louisiana. And New York is using its power to decide whether or not it extradites. And this is deciding no. And that's also what shield laws do. Shield laws that New York passed say that state officials, like a governor or like others, will not extradite for a criminal cause. But the full faith and credit is really the constitutional provision that says when there is a judgment entered, like in Texas, another state will enforce it. But there are exceptions to that provision.

17:39Um, states do not have to enforce the judgments of other states when they are penal in nature, when they are, they seek to punish the person subject to the decision, when they're not meant to compensate and getting a little into the weeds, but it's a very complicated, it's a complicated area of law and it hasn't been one in which abortion has been the issue decided along full faith and credit lines in this particular instance. So there are a lot of open questions here. Let's head back to our inbox. Hi, my name is Mary Kay. I live in Bristol, Tennessee, and the change to the abortion laws impacted me because my daughter was the reason I moved to Tennessee because she was going to medical school and I wanted to help support her through that.

18:26Decided to go into OBGYN as a specialty and had to leave Tennessee to do her residency and made the decision that she will never come back here because of the abortion law fear. It also impacts a friend of mine who has to cross state lines just to get medical care. She's currently pregnant, but she's not married to the partners that she's lived with for 14 years and has another child with. And a doctor in Tennessee has decided that that's against his religion and won't treat her. So she has to go to the other side of the border just to see a doctor. Thanks for that message. Brittany, give us a sense of how maternal health outcomes have changed since Roe fell in 2022.

19:08Yeah. So in many of these states where abortion is banned, the maternal and infant health outcomes weren't great to begin with. Many of these states had the highest infant and maternal mortality rates and just poor maternal and infant health outcomes in general. And since Dobbs, I mean, a good instance is Mississippi, where recently they declared a public health emergency after releasing some data showing the state's infant mortality rate has risen to its highest level in more than a decade. And there have been a number of studies after Texas's SB8 law, which came before Dobbs and limited abortion to six weeks in Texas, showing that births increased as well as the infant mortality rate.

19:52And some of this is because people have been driven to carry pregnancies that won't result in the live birth. And they also have seen increase in death due to things like maternal complications and also potentially infant accidents and infant suffocation. And so these outcomes will just get worse. You also have these states that didn't have great care networks before. And now just like that listener's question or comment, OBGYNs are deciding not to practice in these abortion restrictive states. And so when they were already facing clinician shortages, now Dobbs seems to be making that worse, which has this cascading effect on other aspects of maternity care.

20:33Let's take a quick pause. Back with more in just a moment.

20:42Let's get back to the conversation. Shefali, last year, Louisiana passed a law to reclassify abortion pills as controlled substances in the same category as drugs like Xanax and Valium. Texas, Missouri, and Kentucky have introduced similar legislation. What's behind this push at the state level to reclassify abortion pills? I think a good way for us to understand this is it's a real effort to throw everything that the state legislatures can up against the wall and see what sticks. They really view the availability of medication abortion as an existential threat to their ability to restrict access.

21:21And as Brittany pointed out, these are medications used for all sorts of health needs, including miscarriage management. And I remember when that Louisiana law passed, there was a lot of concern that this could actually have very serious implications for people experiencing pregnancy loss because already people can't really get mifepristone for abortion in Louisiana unless they're leaving the state or using a telehealth service. But the risk to patients who are just trying to get miscarriage care could be much more salient. I think this is also worth considering as part of an ongoing trend, looking beyond just the criminalization laws to other legislative efforts by state houses to try to restrict access to mifepristone and misoprostol.

22:06in Texas lawmakers just passed a bill that would enact new penalties for people who mail medication abortion into the state or otherwise make it available to Texans. That's yet to be signed and wouldn't take effect until the end of this year, but it's part of this really concerted campaign to take these medications and to treat them in the public consciousness as an illicit drug, as something, you know, that should be regulated with the same scrutiny and concern as, say, fentanyl and make it unavailable to people, even if there are health consequences. Rachel, what legal challenges are lawmakers facing in their push to restrict access to abortion pills in their states?

22:49So I think that, you know, as Shefali just mentioned, the bill that will be implemented in Texas at the end of the year, HB7. As that bill is brought into force, people, I think, are waiting to see which provisions of that bill will be challenged in court, either because they're vague of constitutional problems, the way in which it's applied. There's ongoing litigation also based in Texas around the FDA's approval of the first drug of a medication abortion, Mifepristone. And there, you know, I think we've seen litigants on both sides of that question argue on behalf of the FDA's ability and power to approve Mifepristone, which it did, you know, 25 years ago, as well as lift restrictions on it based on, as Brittany said, It's the it's very strong record of safety and efficacy.

23:50But, you know, this this strategy to shut down mailed medication abortion, which is at the heart of bills, litigation, these attacks on shield laws, those those are also coming under fire as people seek to uphold shield laws and question whether or not those strategies are constitutional. or legal in and of themselves. But at their heart, they share the characteristic of seeking to stop mailed pills. And Brittany, when we talk about the use of this medication for miscarriage care, just walk us through the alternatives. If you have a miscarriage and you require additional medical attention and you can't access this medication, what is the alternative?

24:46Yeah, it can be really scary for people. A doctor can send a woman home and it's called expectant management and just wait for the miscarriage to pass. But oftentimes, you know, that can result in extensive bleeding and get to really scary situations where people actually need to seek medical care. and then you can use the two-drug regimen, which is the best, mifepristina misoprostol, to manage a miscarriage and then the other option is to use misoprostol alone. But going through a miscarriage without having medical care is incredibly scary. Well, and absent the medication, the other option is surgical.

25:30It's a DNC. Yes, a DNC, which is also, you know, limited in many states because they consider that an abortion procedure. We got this question from Ed in Fairfax who asks, why isn't the recipient of the abortion pills the one who's prosecuted? And Rachel, I'll come to you on that. State laws, Texas and Louisiana, that ban abortion don't punish the person who is seeking the abortion. They don't punish the patient. And so those laws target providers, they target people who help providers, but they don't seek to attack or go after the person taking the pills or having the procedure. Now, pregnancy has been criminalized in lots of ways in which people who are pregnant have been subject to criminal and other laws.

26:25But it's not the abortion law of a state that creates that penalty. It's usually under other laws of the state in which those people have been targeted for their behaviors during pregnancy. Well, and Shefali, take us into the politics of these laws, that they're written in such a way that they don't go after the person carrying the pregnancy, but instead target the doctor providing abortion care. Why is that through that political lens? There's been a real effort amongst abortion opponents to build a narrative around who are the quote-unquote villains in abortion. And the picture that they try to paint and have been working on for quite some time is that of someone who is taken advantage of by these unscrupulous providers or by someone who forced them to have an abortion.

27:18And that, of course, is very, very complicated and often misleading because people get abortions because they want them. But that is the political argument that they have found to be most salient. Now, we are seeing a divide growing in the anti-abortion movement with some people who are, they call themselves abolitionists, they're viewed as quite extreme, even within the anti-abortion community, who say that, no, if we want to end all abortions, we must go after the pregnant patients themselves, we must target them with criminal penalties, sometimes including the death penalty. But that is viewed as quite extreme, even amongst anti-abortion people.

27:56And that is why it hasn't taken off in a meaningful way in any state house, including the most conservative ones. Instead, what I saw, including in Texas, when they were trying to get conservative votes to pass this most recent piece of legislation that we've spoken about, is they needed to build in explicit language that this would not go after a pregnant person. Otherwise, they just wouldn't get the votes. Going after the pregnant person themselves is simply a Rubicon that they are not yet ready to cross, although there is a real chance that could change in coming years. Brittany, post the Dobbs decision, which overturned Roe v.