The Future Of Telehealth Abortions

This message comes from Schwab. With the new Schwab Teen Investor account, teens can gain hands-on investing experience and build positive money habits. It's an account co-owned by you and your teen, so you can monitor and engage with the account while your teen learns how to invest and manage money. Learn more at Schwab.com. There are more than a million abortions in the U.S. 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 it 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. Wade. 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 drive. 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.

This message comes from Odu, the all-in-one business management software platform. Whether you're a small or large business, Odu gives you one flexible platform built to grow with you. Try today for free at Odu.com slash NPR Podcasts. This week on Wait, Wait Don't Tell Me, we asked rock legend Vicky Peterson from the Bengals why she once filled in for the go-go's lead guitarist, Charlotte Kathy. My friend Charlotte Kathy was pregnant with my ex-boyfriend's baby. I like to put it up. What? Yay! Don't miss our full conversation and the rest of our games. Listen to the Wait, Wait, Don't Tell Me podcast in the NPR app, or wherever you get your podcast. On this season of Planet Money Summer School, we follow the money. And not just the dollars. We're following the Yuan, the Naira, the Krona, and more. Every Wednesday this summer, we're taking you on a world tour to meet the people, trying new solutions to old economic problems. Planet Money Summer School, grab some friends, pack your bags, and don't forget the sunscreen. Listen on the NPR app or wherever you get your podcasts. Joining 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 Rebusier. 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 Shafali Lutra. She's a reproductive health reporter at the 19th. That's an independent nonprofit newsroom reporting on gender, politics, policy, and power. Shafali, it's always great to have you. It's great to be here. Shafali, 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. this 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. rely on telehealth. How has the role and prevalence of telehealth abortion care changed since the Supreme Court overturned Rovue Wade?

New York for over $100,000 in fines under Texas abortion and licensure laws and an attorney's fees. And 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 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 doctorate issue because That doctor has never stepped foot in Texas, has no assets in Texas. And so they're asking the place where the doctor lives to essentially ensure that that physician pays the over $100,000 and 100. $100,000 in 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. Shield law is 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. Now, they're not shields in the sense that it's a free for all. You have to be.

licensed in the Shield 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. This message comes from Odu, the all-in-one business management software platform. Whether you're a small or large business, Odu gives you one flexible platform built to grow with you. Try today for free at Odu.com slash NPR Podcasts. This message comes from designer shoe warehouse. You know that feeling when you find shoes you love at a great price and want to tell everyone about it? Find something to brag about at designer shoe warehouse, like the latest styles from brands you love, the trends everyone's obsessing over, and shoes that make you feel like you. Head to a DSW store or DSW.com today for shoes that get you at prices that get your budget. DSW, let us surprise you. You might have heard of Nepo babies, maybe even Nepo parents. Now there's Nepo husbands, spouses or partners to high-profile women riding on their coattails. On It's Been a Minute, we talk about the many shapes and forms they come in and the scrutiny they face. See what's shaping culture this week. Watch or listen to It's Been a Minute on the NPR app or YouTube. Let'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 Mipipristone 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 Miphypristone. And that prescription pill. is part of a two-step regimen that doctors typically prescribe for abortions, often alongside mesoprostol. Brittany, briefly, how are these pills used in women's health care? Yeah, so they're largely used for abortion. Mithopristone 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. It'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.

Sheffali, what of 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 Merrill 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. We'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 tradeoffs. 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. That 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 male. 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 male versus might have to go through other mechanisms to keep getting this. Well, Brittany, what? 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 states. 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. And 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 Merle, is bringing a criminal case against a New York doctor who prescribed abortion pills to a patient in Baton Rouge. Here's what Merle said about the case in February. It is not any different than if she had sent fentanyl here. It's really not. She sent drugs that are illegal to send them to 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 Hogle 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. Again, would need to stand trial in Louisiana be convicted in a Louisiana court. But as, you know, there's certainly of 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. And 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 and 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. The state to which they fled has a constitutional obligation to extrad. 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 is this deciding no. And that's also what shield laws do. Shield laws that New York pass 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.

States do not have to enforce the judgments of other states when they are penal in nature, when they seek to punish the person subject to the decision, when they're not meant to compensate. 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. 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, decided 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 here. 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 Fowell in 2022. Yeah. 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. And some of this is because people have been driven to carry pregnancies that won't result in a 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 Dobb seems to be making that worse, which has this cascading effect on other aspects of maternity care. Let's take a quick pause back with more in just a moment.

This message comes from Odu. If your business runs on five different apps, 12 browser tabs, and one spreadsheet that everyone's afraid to touch, it's probably time for Odu. Odu is an all-in-one business management software platform. Instead of wasting time switching between systems, your business works together in real time. Odu gives you one flexible platform built to grow with you. Try for free today at Odu.com slash NPR podcast. That's O-D-O-O-O-com slash NPR podcast. Let's get back to the conversation. As Chafali, last year, Louisiana passed a lot of 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. And 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 MIFPristone 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 Mifopristone and Myzoprostol. In 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? So I think that, you know, as Shafali just mentioned,

The bill that will be implemented in Texas at the end of the year, HP7, 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 an ongoing, there's ongoing litigation also based in Texas around the FDA's approval of the first drug of a medication. abortion, Mithipristone. 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 Mitha Pristone, which it did, you know. 25 years ago, as well as lift restrictions on it based on, as Brittany said, it's very strong record of safety and efficacy. But, you know, this strategy to shut down mailed medication, which is at the heart of bills, litigation, these attacks on-Shield laws. 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? Yeah, 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 know. You can use the two drug regimen, which is the best, Mepapestinomyso 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. It's a DNC. Yes, a DNC, which is also 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. But it's not the abortion law of a state that creates that penalty. It's usually under other laws of a state in which those people have been targeted for their behaviors during pregnancy. Well, and Chafali, 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. And that, of course, is very, very complicated and not been 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. Their view is 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. It's quite extreme even amongst anti-abortion people, and 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. And, Brittany, post the Dobbs decision, which overturned Roe v. Wade, what have we learned about who is seeking abortion care and why? Yeah, you know, I think it's the same people that were seeking abortion care before, but we have really great data now from We Count, from the Society for Family Planning, showing that abortions have actually increased post-dobs, particularly in states where there are bans, and that is largely due to telehealth medication abortion. And so...

It's the same people that needed abortion before. One in four women need an abortion at one point in their lifetime. And so women will continue to get abortions, whether it's restricted or not, they just may have to do it in more unsafe ways or travel longer distances to get them. At the federal level, in June, Health and Human Services Secretary Robert F. Kennedy Jr.. asked the Food and Drug Administration Commissioner to, quote, review the latest data on MIFA Pristone. Shafali, where does that stand? It stands where it has stood even at the time. The secretary was just asked about that in his latest round of testimony in Congress, and he said, I don't have a date for you. This is ongoing work. And that sort of raises the question. We don't know if this is something that is actually going to make an impact, have an effect, or if it is something that is being talked about. to satisfy anti-abortion lawmakers and anti-abortion activists who really care about restrictions on Mithopristone and haven't gotten any other concessions that are at least as significant as they might have hoped from the administration. Shafali, in a quick sentence, as you continue to cover reproductive health in the country, what are you watching most closely in the coming months? I am watching who feels that they can safely make medication abortion available to people in states like Texas, from providers to pharmaceutical manufacturers to distributors, and who worries that the risk assessment could change enough that they want to change their protocols and make abortion less available. Well, that Shafali Luthera, Reproductive Health Reporter at the 19th. Also with us, Brittany Fredrickson. She's the Associate Director for Women's Health Policy at KFF and Rachel Rebusier. She's a law professor at the University of Texas School of Law. Thanks to you all. Today's producer was Lauren Hamilton. This program comes to you from WAMU, part of American University in Washington, distributed by NPR. I'm Jen White. Thanks for listening, and let's talk more soon. This is 1A.

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