Across the nation, a significant number of women each month circumvent abortion bans in their states by seeking the aid of telehealth clinics. These clinics provide prescriptions for abortion-inducing medications online, shipping them across the country. The legality of such actions is currently a contentious issue. Two prominent legal cases concerning a doctor in New York could potentially test the shield laws enacted by some states to protect telehealth providers who distribute abortion pills nationwide.
Dr. Margaret Carpenter, a physician from New York, is embroiled in legal troubles, facing a felony charge in Louisiana for allegedly mailing abortion medication to a pregnant teenager in that state. In addition, the teenager’s mother is also facing criminal charges. Furthermore, a Texas judge imposed a $100,000 fine on Carpenter after accusations surfaced regarding her prescribing abortion medications to a woman near Dallas. However, New York’s shield law has so far thwarted her extradition to Louisiana, offering some legal protection. Other telehealth providers, operating in states with similar protections, are observing these developments with great interest.
Dr. Angel Foster, co-founder of The Massachusetts Medication Abortion Access Project, is one of these providers. Her project helps facilitate remote abortions in states with restrictive laws. “We have great legal counsel who have advised us that what we are doing is legal,” she stated. The debate over whether one state can shield providers from liability for breaking another state’s abortion laws remains unresolved. Erik Baptist, senior counsel for the Alliance Defending Freedom, argues that shield laws contravene the constitutional requirement that states respect each other’s laws and legal judgments. He believes the Supreme Court may eventually need to address this matter.
Carmel Shachar, a director at Harvard Law School’s Health Law and Policy Clinic, highlighted the inherent challenges of shield laws concerning telehealth abortions. She pointed out that courts may eventually need to decide whether a telehealth abortion is legally considered to occur in the provider’s state or the patient’s state. The Food and Drug Administration (FDA) authorized the use of two drugs—mifepristone and misoprostol—for ending pregnancies many years ago. Yet, it was only in 2023, following the 2022 overturning of Roe v. Wade by the U.S. Supreme Court, that telehealth abortions across different state lines gained popularity.
According to the Society of Family Planning, which supports abortion rights, there were approximately 7,700 telehealth abortions per month, between April and June 2024, in states that either completely ban abortion or restrict it after six weeks. The prescription process in telehealth clinics varies but generally involves the patient answering several health-related questions online. In many instances, medical providers don’t meet patients face-to-face, even through video calls, and patients may not necessarily learn the prescriber’s identity unless they request it. Clinics, like the one operated by Foster, send the pills labeled only with the practice’s name, as permitted under Massachusetts’ shield law, offering patients anonymity while still providing access to their support services.
Greer Donley, a law professor and expert in abortion law at the University of Pittsburgh, described telehealth services as “the safety net, post-Dobbs, of allowing people who don’t have the ability to travel out of state to get abortion care.” For medications unrelated to abortion, doctors are typically able to write prescriptions across state lines but generally need a license from the patient’s home state if located there, according to Mei Wa Kwong, the Executive Director of The Center for Connected Health Policy.
Currently, twenty-three states and Washington D.C. have adopted laws that provide protection for abortion providers. Among these, eight states have specific provisions that protect providers from criminal prosecution or civil lawsuits even if the patient is in another state. These states include California, Colorado, Maine, Massachusetts, New York, Rhode Island, Vermont, and Washington. Louisiana’s attempt to extradite Dr. Carpenter was stymied by New York’s shield law, with Governor Kathy Hochul rejecting the request. A local county clerk also declined to file a civil judgment from Texas, citing the same law.
Not stopping with legal challenges, Republican Louisiana Attorney General Liz Murrill denounced these doctors as “drug dealers,” arguing they violate state abortion laws by mailing medications deemed illegal in Louisiana. Despite such rhetoric, clinics resolutely continue their efforts. Julie Kay, the Executive Director of the Abortion Coalition for Telemedicine, which Dr. Carpenter co-founded, declared that providers would not succumb to pressure to cease operations.
Dr. Rebecca Gomperts, founder of Aid Access, a provider of abortion pills, commented, “I have been working in this field for 25 years and this is part of the work,” adding that the legal challenges were expected. A doctor associated with A Safe Choice, a California-based network prescribing abortion pills nationwide, expressed confidence in legal protections but decided against traveling outside California for the foreseeable future to ensure safety.
This article highlights the ongoing legal and ethical debates surrounding telehealth abortions and the implementation of shield laws in some states amidst differing abortion restrictions across the United States.