Why is prescribing abortion pills an exception to established medical practice? Welcome to shield laws.
This article was originally published at Pregnancy Help News and is reprinted with permission.
Did you know that a doctor in a state that allows abortion can prescribe abortion pills to a woman in a state that bans abortion, and the doctor may not get in any legal trouble?
That seems kind of weird, right?
Welcome to shield laws.
Shield laws protect abortion providers in states where abortion is legal from civil or criminal charges when they provide abortion-inducing drugs to women in states where abortion is illegal. While the prescribing doctor is breaking the other state’s law because they reside in a different state where they are breaking no laws, no legal repercussions are possible — yet.
This area of law is murky and is currently being tested in legal battles.
“At a certain point, for the purposes of abortion bans, the courts will need to decide: Do we treat a telehealth abortion as happening within the state of the provider or within the state of the patient?” said Carmel Shachar, faculty director of the Health Law and Policy Clinic at Harvard Law School.
However, other legal sources commonly state that, “The practice of medicine is deemed to occur where the patient is located at the time of the encounter.”
Even Shachar herself admitted in an interview, “The law needs to figure out where it’s going to say the service actually happened. Virtually all states have said that the telehealth visit occurs where the patient is located.”
If this is commonly recognized as true, then why should prescribing abortion pills be an exception?
Right now, 22 states plus D.C. have shield laws for abortion providers, protecting them from “out-of-state investigations and prosecutions.”
Pro-life challenges to shield laws
Right now, New York’s shield law is being tested in a couple of ways.
The first is a case in Texas.
A Texas District Court judge ordered Maggie Carpenter, a doctor in New York, to pay a fine for violating Texas state law. Carpenter was found to have provided abortion pills to a woman in Texas, resulting in an abortion. The judge ordered her to also stop practicing medicine in Texas, since she is not licensed in Texas. This is a civil case; Texas did not bring criminal charges against Carpenter.
However, when the Texas judge sent the order to New York to be filed, the County Clerk refused to file the lawsuit, stating New York’s shield laws.
This same doctor is also facing felony charges in Louisiana!
Apparently, a mother of a minor ordered abortion pills for her daughter online, then gave them to her daughter to take. There is no information on how far along the daughter was in her pregnancy, and it is unclear whether this is a situation of coercion/force.
However, some factors point to this being a case of a coerced abortion.
First, the daughter did not order them herself — which she could have, since New York does not restrict abortion to minors. She could have used the same website to order her own abortion pills.
Additionally, the daughter apparently still lives at home; her taking the pills could have been a requirement for her to remain at home. The girl took the pills when she was alone at home and then called 911 and was transported to a hospital in an ambulance due to the amount of bleeding she was having. The mother is also facing criminal charges.
Louisiana is charging Carpenter and her organization with a felony and requested extradition from New York so Carpenter could face these charges in Louisiana court.
However, the Governor of New York, Kathy Hochul, is refusing to abide by the extradition order for Carpenter and has said she will ignore any other similar orders. This case may make its way to the Supreme Court — does one state have the Constitutional authority to ignore another state’s laws?
Abortion pills + telehealth = disaster for women
While pro-choice medical and advocacy groups continue to tout that abortion pills are totally safe, the truth is far from this talking point.
Abortion pills — mifepristone and misoprostol — are much more dangerous than abortion advocates would have you believe.
A common talking point is that “mifepristone is safer than Tylenol” but as this publication points out, this comparison is both oversimplistic and not appropriate to make in the first place.
Mifepristone works by blocking progesterone from the receptors in the uterus, causing bleeding for the woman and death for the unborn baby. Misoprostol works to soften the cervix and make the uterus contract.
While abortion pills are presented as a convenient and private at-home option, women often are not prepared for just how painful the process is or how much bleeding to expect.
This lack of communication from “healthcare providers” is likely what leads to many of the ER visits made after taking mifepristone and/or misoprostol. And while not every ER visit means something actually was wrong, if we use the reasoning shown here by Secular Pro-life, the rate of serious adverse events is still much higher than the FDA reports.
Plus, by not truly receiving informed consent, the patient incurs a higher financial cost to themselves, and the ERs they are visiting incur a higher patient load and financial cost, whether or not the woman truly needed emergency care.
Additionally, there has been an increase in miscoding patients in the ER as having a miscarriage when they actually had abortion pills or a surgical abortion. These miscoded patients also have worse symptoms than patients who got correctly coded.
Lying to doctors about the cause for abortion-related pain or bleeding is a common suggestion to women, but this can greatly delay the proper care and observation they may need to receive.
For example, misoprostol affects women’s immune systems, making it harder to fight off bacterial infections. If a doctor is not aware the woman took misoprostol and thinks she had a miscarriage, she may not receive the testing or medication she needs to help fight off a current or future vaginal infection.
Abortion pills obtained online and/or via telehealth from a doctor in another state necessarily means that very little medical oversight of the abortion is possible.
Even the AP admits that women may not know the name of the doctor who prescribed them the pills, and they may not be able to talk directly to that doctor should they have questions or concerns. They may be able to order the pills completely online without ever having a voice or video call with a doctor. What the AP glosses over is that this also means anyone can order abortion pills online from a doctor — a spouse, a boyfriend, a friend, a parent, a minor — anyone.
This type of process for procuring abortion pills flies in the face of more moderate pro-choice people’s talking points, which are that abortion should be “safe, legal, and rare.”
Abortion pill usage has skyrocketed since Dobbs v. Jackson overturned Roe v Wade in 2022, and abortion pills availability has likely contributed to the increasing number of abortions happening post-Roe. So, abortion is becoming less rare, less safe, and less legal.
Additionally, many abortion advocates tout that abortion should be “between a woman and her doctor.”
But being able to procure a prescription without ever talking to a doctor who lives in another state completely opposes this talking point. Is abortion between a woman and her doctor? Or between a woman and a complete stranger? Or between a man and a stranger?
Shield laws for any other medical procedure are just not a thing. Making an exception just for abortion makes no logical or legal sense. While abortion advocates see the legal challenges to shield laws as an attack on reproductive rights, pro-life people can be proud of states stepping up and challenging these laws.
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