The Dobbs decision has resulted in an increase in requests for telemedicine abortions. Delphine O’Rourke, Partner, Goodwin Procter LLP, speaks with Natalie Birnbaum, Legal and Legislative Policy Consultant, about the landscape of telemedicine abortion post-Dobbs, barriers to patient access, and how providers can navigate the risks. Natalie advises independent providers who are interested in offering telemedicine abortion services across state lines on their rights and risks. She recently authored an article on this topic for AHLA’s Health Law Weekly.
Listen to all of the episodes in AHLA's "After Dobbs" series here.
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This episode of ala Speaking of Health Law is brought to you by ALA members and donors like you. For more information, visit American health law.org.Speaker 2:
Welcome to After Do's Impact on telemedicine abortion. I'm Delino O'Rourke. I'm a partner with Goodwin and adjunct professor at Columbia Law School. I'm thrilled today to speak with Na Burnbaum, who's an attorney who's Barr in New York State, and a legal and legislative policy consultant who serves at the intersection of sex equity, healthcare, technology, and innovation and reproductive health rights and justice. Natalie also chairs the Abortion Access Group at the New York City Bar Association Sex and Law Committee. She's currently advising independent providers who are interested in offering telemedicine abortion services across state lines on their rights and their risks, which will be very relevant for this audience. She has previous worked at Healthcare Innovation Council at Nixon Wilt Law, and on state and federal policy matters related to abortion access at the Center for Reproductive Rights. Welcome, Natalie.Speaker 3:
Thank you so much, Delphine. It is so wonderful to be here with you and having this important dialogue with the HLA community. It's great to be here.Speaker 2:
And this is, you know, I couldn't think of a more timely dialogue right now. What we've seen, even in the years prior to the DOS decision and recently read a study that in 2020, even 50% of abortions were, uh, medication abortions. And that since the decision leaked, and then definitely after the decision was issued on June 24th, the increase in request for medicated abortions has been dramatic. Several, you know, several reasons given, and I'm sure that you're gonna touch on many more increase. You know, it obviously the decision, obviously restriction access. Um, also citing women anticipating and saying, okay, what's gonna come next? So why don't I order some of the pills in advance of increase awareness of what the options are, and women just saying, you know what, we're gonna go outside of the system and self-manage our abortion. So what would be great before you jump into some of the biggest challenges that, that providers are facing, that patients are facing, um, that, you know, health systems are, are facing, is they're looking at how to provide, how to support or not. Um, abortion services is, if you could give us a bit of the landscape before we, we jump in and where we are today. Um, and even also just a broad overview of, you know, medical versus surgical versus telemedicine. Cause I still think there is a lot of confusion as to what the current options are for women.Speaker 3:
First of all, telemedicine, abortion is using telehealth to provide a medication abortion. So we, we know that telehealth is the use of electronic information and telecommunications to facilitate healthcare. And telehealth has been used to prescribe, um, medication abortion and is used to prescribe what is a medication abortion? A medication abortion is the use of two medications, MiFi Pristine and MiFi Prosol taken together, um, to terminate a pregnancy. Um, the regimen of using MiFi PR and misoprostol was approved over 20 years ago by the fda and has been used ever since. Now, the proliferation of telemedicine has for telemedicine, abortion has really come about, um, more so since the pandemic and the public health emergency. Um, when MiFi PR and misoprostol, and maybe it's just easier to call it the abortion pill or plan C, um, was approved by the FDA over 20 years ago. There were, um, risk evaluation and mitigation strategies put on it. So the REMS required that there was an in person dispensing requirement, and this meant that, you know, a, an abortion seeker needed to go in person to a clinic, um, or a provider that was certified to offer, um, the medication abortion. Now, when this was lifted in December of 2021, in part, largely again due to the pandemic, it became accessible really for the first time to get a medical medication abortion direct to consumer.Speaker 2:
And is that a, a waiver that's going to end with the end of the public health emergency? We just saw we had another extension, which is not surprising, but eventually, I mean, eventually we can't have a public health emergency forever.Speaker 3:
Right? That's a great question. Um, no. So to clarify, the, in December, 2021, the rems for the in-person requirement were permanently lifted, uh, for, for providing a telemedicine abortion. However, there are still rems on the, on the pill, and this is unrelated to the public health emergency, but the REMS that now exist on, on the medication abortion pill still do inhibit to a very large extent the ability for people to access a medication abortion. So, for example, um, pharmac pharmacies are now allowed to dispense medication abortion, however, pharmacy needs to be certified, and the FDA has not yet released, you know, guidelines as to what the certification process really looks like. So there are still barriers.Speaker 2:
Okay, that's great that we can put that, I mean, that's gonna be one of the thanks for explaining that one of the areas to watch going, going forward. But I think it's important to think about what does the landscape look like today and what is the landscape gonna look like in three months, six months, three years from now? Because this is gonna be a conversation, um, that we know is gonna be going on for years and is gonna be a battle the entire way.Speaker 3:
Right? Absolutely. And honestly, this is like one of the spaces that excites me so much about, um, telemedicine abortion is the intersection between the advancement of telehealth in our law and healthcare innovation and abortion access. Because in the same way that, maybe not in the exact same way, but in a similar way how the abortion landscape really feels like the wild, wild west right now, the telehealth legal landscape is also very much undeveloped and, you know, looking at medication abortion and telemedicine abortion as kind of a case study, I think there's a real opportunity here to, um, to create access and more and critically look at what are the barriers in telehealth more generally, and see how that applies to telemedicine abortion.Speaker 2:
Yeah, because the, the broad, you know, the, the, the broad barriers then are exacerbated in certain areas. I mean, telepsychiatry and other area that we looked at. Um, another area that I track is, is limitations on access and rural areas due to broadband and what we can do, um, to really, you know, expand telemedicine, not just in in areas that have that, that technological support, but areas where it's so needed but just not reliable.Speaker 3:
Yeah. Well actually, you know, that makes me, that makes me think of an earlier point I wanted to make, which was thinking about, you know, the, the beginning of telehealth and, and telemedicine abortion. Like why, why were, why were these things started? Right. And, you know, telemedicine, abortion was initiated because there are not enough providers offering abortion care and in order to reach rural communities and communities that didn't have, um, access to abortion care providers, which are typically lower income communities, communities centered in the rural south. And so telemedicine, abortion was seen as a solution in order, in order to create healthcare equity. And it's so important that we continue to center equity, like as you mentioned, Delphine, by looking at broadband limitations, language barriers, digital literacy, and, and other challenges that we see more broadly in telehealth as we look at, um, the telemedicine abortion area.Speaker 2:
And we're seeing increases in requests for telemedicine abortions across the country. But how is it playing out in the states where there is no nuance, it's abortion is almost, you know, completely banned. Um, how are you seeing that play out and do we have enough data yet? Because there was a, a report that came out and said, um, abortions have gone down 6% since the, since dos. And a lot of the commentary afterwards was, okay, well, you know, you might not be tracking it, you might not have the data. That's not necessarily accurate. Women might be going to access abortions in, in really unregulated space, which has always been a huge danger for women who can't access telehealth, who don't have, you know, can't fly to another state who don't have an employer who is paying for, for reproductive services. So where are you seeing me? Do you have insight into where you're seeing the increases? And it'd be helpful also here if you could just sort of touch on, you know, where are providers legally protected when offering telemedicine abortion? Because you know, many of our, our audience members may be lawyers to providers, um, who are thinking about the risks, you know, not just from the patient access perspective and whether a patient could be arrested or faced civil criminal fines, but also what should the providers be doing,Speaker 3:
Right, absolutely. It's a great question. So to your first point in terms of increasing of medication, abortion, um, and telemedicine, abortion post ops, we can just, um, talk about aid access first. So what is aid access? They are an online telemedicine abortion provider. Um, it is run by a woman named Dr. Rebecca Goertz, and she is located outside of the United States. So they're able to openly provide, um, telemedicine, abortion care to individuals located in states where abortion is illegal. After dos, inquiries to eight access tripled 2 3600 a month from about 1200 a month. And two thirds of these inquiries were from women in states with abortion bans. So the, the inquiry into getting telemedicine, abortion and the provision of telemedicine abortion care is definitely, has definitely, um, seen an increase. Now in terms of provider protections, it is, um, a very unknown landscape right now. What we do know is that providers offering abortion care in states where there are no restrictions, um, okay, yes, you can offer telemedicine abortion in your state that's clear in states where you can't offer, um, where abortion is not legal, which are 13 states. Right now, of course, you cannot offer, um, telemedicine abortion as a provider within that state. Now, the gray area is what if you are a provider located in, let's say, New York where abortion care is protected and legal, and you are providing a telemedicine abortion to a patient located in a state where abortion is not protected such as Texas. What's the, how is the provider protected there? So currently, um, specifically in New York, a state would, um, a provider would not be protected from the legal ramifications of that state of, of Texas. There are few ways of looking at this, right? So there, there's the civil consequences, there are criminal consequences, there are also licensure consequences. And while states have been enacting what they, what are, what are being known as shield laws, which essentially protect a provider located in their state, you know, such as California, New York, um, Massachusetts, also Connecticut and New Jersey, from, from being subject to the laws of the state where abortion is not legal, that does not, specifically in New York, does not include, um, an abortion that takes place outside of state lines. So going back to the definition of telehealth, we know that in telehealth, the definition of the point of care is that the originating site, which is where the patient is located, not where the provider is located. So this is the big hot button issue, is how can laws protect providers who are offering telemedicine abortion in a state where it is legal to a patient, um, in a state where it is not legal.Speaker 2:
Okay. So that, that lots to unpack there. Um, but help us from a practical perspective, navigate the provider. Maybe the provider's a small, you know, maybe they're three or four physicians practicing and they're trying to mitigate risk, follow the law and, and make sure that they're not exposing themselves and their practices to criminal liability, civil liability, et cetera. Um, if they're seeing patients who are not in fact in Massachusetts.Speaker 3:
Right. It's a great question. And again, it's unchartered territory. So there are a lot of legal questions, but the best way to mitigate risk is first understanding, um, does your state require, um, verification and authenticate authentication of location in your, in your telehealth laws? So eight states currently require verification and authentication of location, while nine states require verification alone. So verification alone just means asking your patient, are you located here? Whatever their answer is, their answer is, um, authentication is a two-factor verification essentially. So perhaps that's also, you know, a geo blocker or some location identification, you know, using technology, what is the liability of the provider if a patient speaks to them or, or tells them something that isn't honest. I mean, if it isn't first, if, if it's not, you know, required by that state's laws, I mean, I would go ahead and say that, you know, the, the provider is not going to be liable. Even in those states where there are verification and authentication requirements in the law, the question then becomes one of enforceability, what does enforceability look like there? And that's something we haven't seen and we just don't know.Speaker 2:
And that's a big, that's the big gray zone we can have, you know, there are a lot of laws on the books that have penalties and are never enforced, and then others, um, that are aggressively enforced. And we saw some initial indications from the Texas AG letter to Lyft, um, letter to a certain law firm, um, and just taking a very aggressive stance on<inaudible>, for example. But to date, um, we, we haven't seen enforcement activity against an individual or a corporation, which was again, a big area of concern. Are the employers who jumped in and said, yes, we're gonna cover access to reproductive uh, services, are they gonna be facing, you know, potentially, you know, whether it would be class action suit or otherwise for aiding and abetting. So a lot of unknown, which is, you know, contributing to the overall anxiety and uncertainty of how to move forward. So at a certain point, you've gotta move forward and say, okay, this is part of my overall risk assessment because knowing where your patient is is a challenge in, in all telemedicine. I mean, obviously the, the, the penalties aren't as high. Um, but that's a constant, that's a constant conversation, um, right. You know, imagine. So what do you think is unique though? Because yes, there are, you know, considerations that we have with telehealth across the board, um, and we've talked about access, we've talked about, you know, broadband we've talked about, you know, but how about, you know, the populations that are most need in most in need of telemedicine, abortion access across state lines, you know, underserved communities, areas where socioeconomic, um, situation is already dire and where we are layering on yet another, um, barrier to access for many women who, you know, have been historically seeking, uh, abortion services, um, and, and now really don't have the option of, you know, flying to another state or even even the, to medicine and abortion pills or they're not cheap, you know, and 300$5,500, which is the price that I've been price tag that I've been seeing if it's not reimbursed, is prohibitive for, for many women.Speaker 3:
Right, right. Absolutely. Um, yeah, and I will just add that, you know, through eight access, they do have a sliding scale from zero to$150 to get the, to get a medication abortion. So there are alternatives that are less expensive, but you're absolutely right. Um, in terms, you know, a medication abortion through telemedicine can be even up to$800. You know, that definitely adds to, adds to the barriers to access. And I do think it is important to understand that the uptake of telehealth and telemedicine abortion are tied together. And of course it is unique, um, in terms of the telemedicine abortion space, because generally speaking, black and brown and women of color are more likely to have abortions and less likely to be insured.Speaker 2:
Yeah, no, it's a, it's a, it's a challenge, um, that we need to address head on. Um, and as you say, we already have our, our maternal, um, mortality and morbidity rates, we have not decreased in the past 40 years. We haven't seen any significant improvement, andSpeaker 3:
In fact, they've increased, which is just crazy.Speaker 2:
It's crazy. And, you know, it's been study after study that that countries with restrictive abortion laws see increases in maternal mortality. So, you know, yet another reason that that providers think, okay, well, you know, there's the risk of, of enforcement. There's a risk of, um, women presenting who have not received the care that they needed, the prenatal care, whether they're presenting to the emergency room or, or presenting, um, just seeing their providers and their providers realizing that they're an emergent situation. Um, so what are we, we've had some great conversations about the main concerns that providers want legally addressed, and you've provided some really great scenarios that providers are finding themselves in and, and trying to figure out how to navigate. And, you know, my only sort of word of caution is that the navigation today is gonna be a different, different navigation next week and a different life vest the following week. So, um, if you could give us some examples and your thoughts on how to, how a provider can in practice try to figure out how to make sure that they're providing the best care to patients. Patients are always at the center of the conversation. Um, while, while balancing the risks,Speaker 3:
Well, in this unknown landscape, postops, the looming question seems to be what does it mean for a provider to center a patient? Does that mean weighing the legal risks as well as the medical risks for their patient? And if so, how familiar with state and federal law does a provider need to be to responsibly offer safe and effective medical care? Ideally, as a provider, centering patients health and safety should always remain the top priority. And as lawyers and policy makers, it's our job to do the best we can to ensure healthcare providers can do just that. So centering a patient both legally and medically is directly tied to centering equity. As we touched on previously in reproductive healthcare. Um, and equity in reproductive health settings is achieved when all people are able to reach their full health potential regardless of factors like race, sexuality, socioeconomic status, immigration status, and even marital status. So within the parameters of the law, providers can center equity by offering telemedicine abortion in a way that is culturally sensitive and reduces logistical barriers. So for example, when using telehealth in different platforms, providers can offer technologies that have lower data usage and offer chat only and audio only features, which can help reduce technology barriers and ensure the platforms are offered in multiple languages and are also private and secure. And additionally, when providers are offering telemedicine abortion across state lines, patients who cannot afford to travel across state lines to pay for childcare and take time off work to go to an access state can receive the care they need. Of course, in this scenario, providers must also weigh their legal risks as well. And this is exactly where the shield laws we had mentioned earlier come into play. So, so currently, Massachusetts is the only state that explicitly protects providers regardless of where the patient is located at the time of care from the criminal, civil licensure and malpractice laws and penalties of the restrictive state. Still, even with this protection, providers must weigh their risks and understand that if they leave Massachusetts or a state with a comparable law and they enter a state that does not have some sort of shield law protection, they run the risk of being extradited to the prohibitive state. And we haven't seen any examples of this play out, um, yet, but we, we anticipate we will. And, you know, just talking to a provider, like a real and grounded example, she was saying that as she was considering, you know, where she's sending her daughter to college and this provider is currently offering, um, telemedicine abortion across state lines, she is considering not only is the state I'm looking at for my daughter's college restrictive, but will that state, um, well that state's law enforcement comply with an extradition request from a restrictive state. So can I go visit my daughter in college? Right? And again, that is, that is one side of a consideration, and that risk is a much different risk than looking at, you know, a woman who cannot receive her healthcare in, in a restrictive state. So going back to the patient, it's also critical to consider the criminalization risks that women can face for their pregnancy outcomes. So women and overwhelmingly black, indigenous and women of color have been criminalized for their pregnancy outcomes and sexual health and reproductive choices for centuries today, three states, Nevada, South Carolina and Oklahoma still criminalized self-managed abortion. And to clarify, an abortion is considered self-managed when it is done outside of the clinical setting. So while we know the abortion pills have made self-managed abortion physically safer than ever, punitive state responses still pose a significant threat. And ultimately where a patient ingest pills can make a huge difference on how they are treated legally for the outcome of their pregnancy. So for providers, this is worth considering when offering the advanced provision of pills. Another scenario where patients are at risk is aftercare. So let's say a provider offers telemedicine, abortion to a patient, um, that is located in or travels to a restricted state, and then that patient needs aftercare. Will that patient be able to access the medical care they need? And if she does, is she in a state where she can be criminalized for that initial ingestion of the pill or telemedicine abortion care? So with all of this in mind, it is critical for providers to just really be communicative and sensitive in this time of fear and unknown. And of course, the incredible providers that are doing this work are already communicative and sensitive, but I really do see this as a new op, as an opportunity to build new levels of trust between providers and patients and, and also lawyers. Um, providers can consider asking patients, you know, in their telehealth meetings or you know, any real abortion healthcare, um, setting, you know, if they know their legal rights before obtaining services to direct them to online resources if they're interested. And again, prioritize using private and secure platforms. And it's important to note that this doesn't mean that providers should be making legal risk assessments and decisions on behalf of patients. To the contrary patients, just like providers must be given the choice to assess their own risk and the tools to do so when they're receiving the medical care they need.Speaker 2:
Natalie, thank you for this fantastic conversation and really your, your deep dive into the telemedicine abortion landscape. So what are other considerations for providers from a legal perspective and what, what can they do? I mean, what should be top of mind? We already touched on the field law, uh, but you know, what else should they be thinking about?Speaker 3:
Well, Delphine, these are unchartered times and I just wanna start by offering, again, my gratitude and respect for providers working in reproductive healthcare and emergency medicine who are suddenly finding themselves needing to function as lawyers, activists, and policy makers on top of the already incredibly brave, intimate, and life affirming work they do. And I want to encourage providers to reach out to the legal communi and their provider communities for support and take advantage of free online resources offered by organizations like Plan C, the Reproductive health access project, the<inaudible> Project, Kaiser Family Foundation. And additionally, providers who are interested in offering telemedicine abortion can partner with online clinics like, Hey Jane, who recently had a 6 million raise, um, choice and aid access who are more likely to already have preexisting infrastructure and do have this infrastructure to navigate this landscape as best as you know, any of us can. And for individual providers, there is definitely, and we've touched on many of these points today, a general internal checklist to go through, um, to think about when understanding the provision of care. So first, a provider must be aware of their state's abortion laws, including the restrictions and protections consider the abortion laws of the state, where their patient is located, if that is a different state insurance coverage, licensure requirements, and also communications and data privacy. Now, from the policy perspective, so zooming out a bit, two key areas that can expand access for providers to actively look at and continue their activism in are, one, the state and federal Medicaid funding for abortion care and advocating for the repeal of the fiscal hide amendment at the federal level, so that way we can get Medicaid funding, um, and support for abortion care to lower income communities, and typically to the groups that have the least access to care. And second is looking at how the FDA classifies the abortion pill and advocating for the lifting of the rems. So research shows that the abortion pill is 98% effective. And so to ground that statistic, we're talking about a drug that is as safe as an Advil while the in-person REMS requirement, which we had discussed earlier, was lifted in December, 2021, the classification still impacts the provision of care by increasing the cost of the pill, increasing stigma and decreasing availability. So REMS are reserved for high risk drugs, and when a drug is labeled high risk, this inevitably increases insurance cost. And the impact is that providers are paying premiums to offer the abortion pill and are financially de incentivized. Ultimately, providers must consider if they can even afford to offer medication abortion in their own business.Speaker 2:
Yet another barrier and the list goes on, increased concern about privacy, cybersecurity insurance hacking are just some of the areas that providers, additional areas and the, you know, in addition to the ones that you've mentioned, the providers need to think through and right. You know, whether, whether it's abortion services, tele management services, or any other service that would be, that would be limited in the future. In coming back to the concept of this isn't just about abortion services. This creates a chilling effect and it decreases access well beyond just the plain language of the law. So thank you again. This was incredibly informative and, and practical tips for our audience and we really appreciate you joining us on After dos. Thank you so much Delphine.Speaker 1:
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