In the span of less than five years, providing abortion meds via telehealth has gone from illegal to normal.
By Q2 2024, an estimated 20% of all abortions were facilitated via telehealth, according to an October report from the nonprofit Society of Family Planning’s #WeCount initiative. There were 57,150 telehealth abortions in total that quarter, up from 22,430 during the same period a year before.
But this new prescription method is now facing legal threats.
States—first Texas in December, then Louisiana in January—separately sued New York doctor Margaret Carpenter and her practice Nightingale Medical, accusing the provider and clinic of violating their states’ near-total abortion bans by telehealth prescribing abortion-inducing drugs to patients residing in their states.
The lawsuits are the first major tests of shield laws, which protect abortion providers from out-of-state prosecution or investigations related to their abortion care services.
Some abortion advocates have raised concerns that these moves could have a chilling effect on providers’ willingness to offer telehealth abortion care in states where it is illegal. So far, however, experts note that nothing has changed.
“Most providers are standing firm and saying, ‘I’m going to keep doing this as long as I possibly can—until if and when something changes,’” Amy Merrill, co-founder of Plan C, an organization that monitors all the sources of abortion medication available online, told Healthcare Brew.
Care continues
Plan C has found that online providers don’t seem deterred by the current litigation against shield laws—at least not yet.
Merrill said she knows of at least two online abortion pill services that stopped offering abortion care after the November presidential election—she declined to name which ones—but to her knowledge, none have stopped care after the suits began.
“The fear created by this shifting legal landscape [could] cause providers to just pull out and say, ‘I'm done, even if what I’m doing is totally permissible [in my state],’” Merrill said. “But we haven’t seen a big wave of that.”
Effects of litigation
Out of the 23 states (including Washington, DC) with reproductive care shield laws, eight, including New York, enacted telemedicine-specific laws to protect providers regardless of patients’ location following the June 2022 Dobbs v. Jackson Women’s Health Organization ruling, according to the University of California, Los Angeles.
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Meanwhile, New York Gov. Kathy Hochul is also holding firm. She strengthened the state’s shield law on Feb. 3, removing requirements for providers to put their names on prescription labels. And when Louisiana requested Carpenter’s extradition, Hochul flatly refused on Feb. 13.
But providers still face threats: Those charged with criminal abortion can lose their medical licenses in states without shield laws or be arrested if they travel to a state without them, a 2023 report in the New England Journal of Medicine noted.
Though not all telehealth abortion services offer care to people living in states where abortion is banned, care via shield laws makes up nearly half of all telehealth abortion care. #WeCount found that from April to June 2024, there were 19,000 telehealth abortions on average per month. Of those, an average of 9,700 were done via shield laws.
Ushma Upadhyay, #WeCount co-chair and University of California, San Francisco professor, told Healthcare Brew it’s not clear how many of the abortions now done via shield laws were done via other methods before.
But she’s confident that shield laws have changed telehealth abortion care for the better.
Prior to these protections, she said, patients in states where abortion was illegal were primarily obtaining pills from European doctors. With thousands of miles between them and their prescriber, it was harder to get questions answered or receive follow-up care. Now, she says it’s much easier.
“Shield law providers…really are providing care that is so essential,” she said. “It takes a really special person to be able to provide care that they could be prosecuted for, and takes a lot of bravery and heroism.”