How New York's Telehealth Shield Law Protects Abortion Care: A Guide for Clinicians

How New York's Telehealth Shield Law Protects Abortion Care: A Guide for Clinicians (Doctors for America & Columbia Law School Science, Health & Information Clinic, Feb. 2025)

*How New York's Telehealth Shield Law Protects Abortion Care: A Guide for Clinicians* (Doctors for America & Columbia Law School Science, Health & Information Clinic, Feb. 2025)

In 2022 and 2023, New York State (NYS) enacted broad shield laws to protect clinicians who provide reproductive health care services. One of those laws is a telehealth shield law ("NYS Telehealth Shield Law"foot_0 ) that protects clinicians located and licensed in NYS who provide abortion, regardless of the patient's location. The purpose of this guide is to help clinicians understand the NYS Telehealth Shield Law's protections for reproductive health care provided by telehealth. While this guide was written to help clinicians decide if they want to pursue providing medication abortion via telehealth, it is intended and should be used purely for educational purposes. Any clinician who chooses to provide this type of care should consult an attorney for individualized legal advice before doing so. Part I ("Introduction") introduces terms and concepts that will be explored further throughout this guide. It includes a glossary, a description of interstate shield laws, an overview of the NYS Telehealth Shield Law, and reasons why abortion via telehealth is important. Patients") is for NYS clinicians considering providing telehealth abortion services to patients located in NYS. This section also describes other statutory protections for clinicians in the state ("Reproductive Health Act"). Out-of-State Patients") is for NYS clinicians considering providing telehealth abortion services to patients located across state lines (outside of NYS). This section includes a section-by-section breakdown of the NYS Telehealth Shield Law, describing the protections it provides along with its potential limitations. Part IV ("Additional Considerations") flags other factors clinicians should consider before providing telehealth abortion services. This section discusses medical licensure considerations, HIPAA concerns, and other factors. Steps") provides clinicians who want to pursue providing medication abortion via telehealth with practical next steps, including finding an attorney who can assist in the creation of an individualized risk assessment. (1) An act taken by someone seeking reproductive health care for themselves; or (2) an act taken by a clinician or helper to facilitate someone else's access to reproductive health care. This includes any act or omission taken to aid or encourage (or attempt to aid or encourage) a person in exercising their right to access reproductive health services, such as getting an abortion or providing insurance coverage for such care, regardless of the patient's location. As expansively defined in the NYS Telehealth Shield Law, this includes "all services, care, or products that is of medical, surgical, psychiatric, therapeutic, diagnostic, mental health, behavioral health, preventative, rehabilitative, supportive, consultative, referral, prescribing, or dispensing nature relating to the human reproductive system," including but not limited to abortion, miscarriage, and contraceptive care. NYS laws protect these services provided both in-person and through telehealth, so long as the services are provided in accordance with the NYS Constitution and laws and are provided from within NYS. The use of communications technologies to provide health care at a distance,foot_2 e.g., prescribing medication abortion pills from NYS to a patient located either within NYS or out-of-state. This guide is for clinicians licensed and located in NYS who are interested in providing abortion via telehealth (for example, consulting with a pregnant patient over video call and mailing medication abortion pills to them). This practice can serve both patients located in NYS (see Part II) and patients located across state lines (see Part III). This guide is intended to help clinicians better understand the protections afforded by the NYS Telehealth Shield Law to those who provide abortion care remotely via telehealth. Our hope is that, with the information provided in this guide, clinicians can more effectively assess for themselves whether to provide abortion via telehealth to patients outside of New York State. This guide is not a substitute for legal advice and should not be construed as legal advice on any subject matter. If, after reading this guide, a clinician is interested in providing abortion via telehealth to patients outside of New York State, they should obtain individualized legal advice from any of the resources listed in Part V of this guide. This guide can also be informative for other employees who work in a clinician's office, including administrative professionals. The NYS Telehealth Shield Law aims to protect NYS-based "providers and facilitators of reproductive health services" when they provide abortion via telehealth while following all NYS laws and regulations. The law defines "services" and "providers" expansively, 3 which means it seeks to protect as many people and services as possible. Those who provide, assist, receive, or support access to abortion in NYS are protected by the extradition clause-and likely other sections-of the NYS Telehealth Shield Law (see Part III(A)). However, anyone who works with a clinician providing telehealth abortion services to a patient outside of NYS should obtain individualized legal advice from any of the resources listed in Part V of this guide to discuss whether or not they are included in the protections provided by the NYS Telehealth Shield Law. Since the U.S. Supreme Court overturned Roe v. Wade in June 2022, almost 25% of the U.S. population lives in a state that bans or severely restricts access to abortion. 4 States with legal protections for abortion access, including New York, have seen huge influxes of out-of-state patients traveling to receive abortion care, 5 which in turn puts strain on in-person appointment capacity. This strain can make it difficult for both in-state and out-of-state patients to access the care they need. Expanding access to abortion via telehealth can help alleviate this strain and make it easier for patients to access necessary care without travel, regardless of where they live. For example, in New York, rural populations have significantly less access to preventive care than do metropolitan populations, which results in reduced access to reproductive health services. 6 Many rural New Yorkers must drive approximately one hour to reach their nearest abortion clinic, 7 and travel distance has been shown to pose a significant barrier to successfully receiving abortion care. 8 Abortion via telehealth is alleviating these burdens on pregnant patients and expanding access to abortion even within NYS. Further, many pregnant people who live outside of NYS are forced to travel much further than one hour to reach their nearest abortion provider. For example, a pregnant person in the middle of Texas would need to travel for hours by car to reach the nearest abortion clinic in New Mexico. Since the overturning of Roe, abortion funds estimate that the cost of being forced to travel for an abortion has increased 41%, totalling well over $1,000. 9 This includes the cost of transportation, accommodations, time off work, childcare, and more. When two in three Americans cannot comfortably afford a $400 emergency expense 10 -much less a $1,000 emergency expense-abortion becomes inaccessible for many pregnant people who don't have access to telehealth. Since Dobbs, the use of medication abortion to end a pregnancy has increased from 53% of all abortions in 2020 to 63% in 2023. 11 With the subsequent passage of laws like the NYS Telehealth Shield Law, along with other factors such as the COVID-19 pandemic, medication abortions provided via telehealth in the U.S. have also generally increased, accounting for approximately 16% of all abortions in the U.S. in September 2023. 12 Further, studies have shown that providing medication abortion via telehealth is just as safe and effective as providing this care in-person. 13 Interstate shield laws are laws that aim to protect clinicians and other stakeholders in the enacting state from criminal or civil investigations, lawsuits, and prosecution by other states for the provision, facilitation, and receipt of reproductive health care. They became necessary due to extreme disparities in laws regulating health care between states following Dobbs and the rise of anti-abortion and anti-transgender legislation at the state level. These disparities create a "patchwork" effect, where certain health care is perfectly legal in one state, but criminalized in a state right next door. In light of these conflicts state-to-state, 17 states and the District of Columbia have enacted shield laws that create protections for clinicians from civil and criminal penalties sought by states where abortion or gender affirming care is illegal. The NYS Telehealth Shield Law and other NYS shield laws mitigate the threat to clinicians who provide abortion care to out-of-state patients by protecting against: as the NYS Office of Professional Medical Conduct (OPMC)). 15 ■ Adverse liability insurance actions (preventing insurers from taking adverse action against abortion clinicians, such as rejecting or limiting insurance coverage, increasing premiums, refusing to renew coverage, or filing a report to any private or governmental entity). 16 These and other provisions will be discussed further in Part III of this guide. It is important to note that these protections are not limited to telehealth; they also cover care provided within NYS. (For example, if a patient were to travel from a state where abortion is illegal to receive an abortion in NYS, the hostile state could not force NYS officials to cooperate and assist in bringing criminal charges against the clinician who provided the care.) NYS and other states can enact and enforce these laws because many aspects of the provision of health care are covered by state authority (rather than federal law). For example, licensing and liability insurance requirements are dictated at the state level. The intent of these laws is to protect clinicians regardless of their patient's location. However, some anti-abortion state officials may hold a different opinion as to where the telehealth abortion care was provided: in the state where the clinician was located (as the NYS Telehealth Shield Law protects) or in the state where the 16 See N.Y. Ins. Law § 3436-a (prohibiting malpractice insurers from taking adverse action). 15 See N.Y. C.P.L.R. 4550 (finding inadmissible evidence related to protected health activity provided to persons not physically present in the state as evidence that such party has engaged in professional wrongdoing); N.Y. Educ. Law § 6531-b(2) (finding that provision of reproductive health services does not constitute professional misconduct under any public health law, rule, or regulation governing licensure, certification, or authorization of clinician). patient was located. This creates legal questions that may ultimately be resolved by the courts. Under NYS law, providing abortion via telehealth to NYS patients has become an activity with low risk because state public health laws offer strong protections for clinicians. 17 In 2019, the NY state legislature passed the NYS "Reproductive Health Act," 18 which gives patients an unqualified right to abortion up to 24 weeks of pregnancy, and after 24 weeks if the patient's life is at risk or the pregnancy is nonviable. 19 Then, in 2023, the state enacted the NYS Telehealth Shield Law, which offers numerous protections to in-state clinicians, guaranteeing that, as long as clinicians practice within NYS, they will be safe from criminal consequences for providing any of the "protected health activities" 20 (falling under the ambit of reproductive health services 21 ) listed within the act. These laws offer significant protection for clinicians located and licensed in NYS who are considering providing in-state telehealth abortion care, making this a "low-risk" activity. See supra Part I(B): Glossary (defining "Reproductive Health Services"). See supra notes 14-16 (describing the scope and extent of the New York shield law's added protections); see also supra Part I(B): Glossary (defining "Legally Protected Health Activity"). See supra notes 14-16 (detailing changes enacted by the New York shield law). Providing abortion care via telehealth to patients located outside of NYS could entail risk, but the NYS Telehealth Shield Law provides numerous important protections. Those protections are outlined here, one by one. Please Note: While this guide was written to help clinicians decide if they want to pursue providing medication abortion via telehealth, it should be used purely for educational purposes. Any clinician who chooses to provide this type of care should consult an attorney for individualized legal advice before doing so. Caveat: Section 3 does not shield against compliance with a valid court-issued subpoena or warrant that is not related to a law that seeks to criminalize or impose civil sanctions on legally protected health activities. E.g., if a clinician is held liable in an out-of-state malpractice action based on facts that would also constitute malpractice under NYS law, they will not be shielded by the NYS law. Section 5 prohibits NYS courts from ordering clinicians licensed and located in NYS to provide testimony under an order issued in connection to the provision of a "legally protected health activity," regardless of where the patient is located. An order from a court to provide evidence or testimony An infringement of a person's right that leads to civil liability, e.g., medical malpractice themselves or their legal representative, the clinician may be forced to testify. Section 6 prohibits evidence of NYS clinicians providing assistance to out-of-state patients (i.e., providing them an abortion via telehealth) from being admitted as evidence of wrongdoing on the clinician's part. So long as the clinician is present in NYS, they are shielded from claims that allege wrongdoing for the provision of "legally protected health activities" to out-of-state patients. Section 7 prohibits insurers from taking adverse action (e.g., canceling a clinician's policy or doubling their premium) against clinicians solely on the basis that they are providing "legally protected health activities" to out-of-state patients. Clinicians in NYS prescribing abortion medication to out-of-state patients via telehealth services shall remain covered by their insurance providers. Section 8 specifies that providing "legally protected health activities" shall not constitute professional misconduct under any NYS law, rule, or regulation that governs licensure, certification, and authorizations. Clinicians' licenses are not allowed to be revoked, suspended, or annulled based on any penalty or disciplinary procedure in the NYS public health law solely based on the provision, via telehealth, of "legally protected health activities" to patients who are out-of-state. This protection extends to clinicians who have been subject to discipline in other states, so long as the out-of-state discipline was solely for the provision of abortion and not for actual malpractice. Clinicians will remain protected from misconduct proceedings before the Office of Professional Misconduct ("OPMC") so long as they remain in NYS when providing telehealth services for abortion to out-of-state patients. Caveat: Clinicians must note that these protections only apply to their licensure in NYS. NY's shield laws do not-and cannot-protect clinicians from licensure consequences in other states. Part II and Part III of this guide discussed the ways in which the NYS Telehealth Shield Law and other NYS laws protect clinicians who want to provide medication abortion via telehealth. However, there are other factors clinicians should also consider before providing this care. This section covers a non-exhaustive list of such considerations. Licensing revocation and disciplinary processes differ by state. Section 8 of the NYS Telehealth Shield Law (see Part III(H)) protects clinicians licensed and located in NYS from penalties or discipline by the NYS Office of Professional Medical Conduct (OPMC) solely for providing legally protected reproductive health services to out-of-state patients. However, if a clinician licensed and located in New York also holds a license in another state, NYS has no authority to prohibit the medical board of that other state from disciplining or revoking that license. There could be a risk of discipline and license revocation in a state other than New York if, e.g., that state has criminalized abortion, and the clinician provides reproductive health care to residents of that state. The NYS Telehealth Shield Law attempts to minimize this risk by prohibiting NYS agencies from providing information about the clinicians' services to out-of-state medical boards per Section 3 (see Part III(C)). The NYS Telehealth Shield Law requires clinicians providing legally protected reproductive health care, including telehealth abortions, to follow the NYS Constitution and law in order to be protected. patients located in hostile states choose to forgo licensure in those states. 22 Any clinician considering this option should consult an attorney from one of the resources listed in Part V(B) of this guide. The HIPAA Privacy Rule supports patients' access to comprehensive reproductive health care services by guarding their protected health information (PHI), including PHI related to abortion and other reproductive health care. It is possible that clinicians providing telehealth abortion to patients in hostile states could be contacted by police from that state and asked to provide PHI on certain patients. It is important to note that HIPAA's Privacy Rule generally permits but does not require covered entities-such as clinicians and their practices-to disclose PHI about an individual without the individual's consent when requested by law enforcement. 23 In April 2024, the HIPAA Privacy Rule was amended to add new protections for people seeking and providing reproductive health care. As amended in April 2024, the HIPAA Privacy Rule outright prohibits covered entities from disclosing PHI to law enforcement in certain circumstances. 24 Specifically, the HIPAA Privacy Rule now prohibits disclosure of PHI when law enforcement requests the PHI for the purpose of investigating or imposing liability on someone for seeking, obtaining, providing, or facilitating reproductive health care, or identifying someone connected with this activity, when (1) the care in question was obtained or provided in a state where such care is lawful, (2) the care was "protected, required, or expressly authorized by Federal law," regardless of which state in which the care was provided, or (3) the HIPAA-covered entity receiving the request has no actual knowledge that the care was unlawful and the law enforcement making the request has not "demonstrate[d] a substantial factual basis" that the health care was unlawful. 25 HIPAA, its Privacy Rule, and the NYS Telehealth Shield Law work together. As discussed above, the NYS Telehealth Shield Law aims to offer additional protections for clinicians, above and beyond HIPAA. The NYS Telehealth Shield Law bars NYS and local government employees from complying with out-of-state law enforcement requests, including requests for PHI from NYS clinicians related to legally protected health activities (including abortion) (see Part III(C-D)). The law also prohibits NYS courts from issuing such orders or authorizing such orders from out-of-state. It also prohibits NYS law enforcement from helping out-of-state law enforcement demand PHI related to protected health activities. If a clinician is contacted by law enforcement from a hostile state, they should seek legal advice immediately. Clinicians can reduce risks to themselves and their patients by managing data carefully. A complete overview of data privacy and data security best practices is beyond the scope of this guide. We collect some resources in the following footnote.foot_7 In December 2024, Texas became the first state to bring charges against a NYS physician, Dr. Margaret Carpenter, for providing telehealth medication abortion care across state lines. In January 2025, Louisiana became the first state to bring criminal charges against the same physician. For now, the NYS Telehealth Shield Law is working as intended, and Dr. Carpenter has not been extradited to either of these states. New York's governor and attorney general have said that they will work to protect Dr. Carpenter and the law. Judicial decisions in these cases have not been issued as of February 2025, but they could shape how the shield law will be enforced in the future. For this reason, clinicians who want to provide telehealth abortions and want to rely on shield laws' protections should contact an attorney for up-to-date legal advice on the status of the law. New York State can only protect people within its borders. Therefore, the NYS Telehealth Shield Law cannot protect patients who travel to NYS for care or who receive telehealth care from an NYS clinician in another state. One area of the NYS Telehealth Shield Law that clearly protects all those who provide, assist, receive, or support access to abortion in NYS is the extradition clause (see Part III(A)). This means that NYS cannot extradite clinicians, patients, helpers, and others for participating in an abortion provided by a clinician located and licensed in NYS, so long as those helpers and others did not flee from a hostile state. The protections from extradition included in the NYS shield law apply only to those located in New York State when they participated in the protected health activity. In addition, as discussed in Part IV(B), the NYS Telehealth Shield Law does prevent NYS courts from issuing warrants or other court orders for out-of-state law enforcement for PHI related to protected health activity (see Part I(B) for definition). It also bars NYS clinicians from disclosing this PHI to out-of-state law enforcement. This means, in theory, law enforcement cannot force NYS clinicians to give them PHI related to a telehealth abortion provided to a patient located in a hostile state, thus implicitly protecting that patient. If an abortion fund or other helper has questions about their protection under the NYS Telehealth Shield Law, they should seek individualized legal advice. If a clinician is concerned about the protection of others who work in their clinic, they should speak to an attorney to better understand if their colleagues are covered by the NYS Telehealth Shield Law. As of February 2025, NYS law allows prescribing clinicians to list their practice name-as opposed to their personal name-on medication abortion prescription labels. This change is intended to protect both clinicians' and patients' privacy. This guide is intended to provide a better understanding of telehealth shield laws, including the NYS Telehealth Shield Law. Clinicians must decide for themselves whether the NYS Telehealth Shield Law and other factors make them feel comfortable providing abortion care via telehealth. This guide is not a substitute for legal advice and should not be construed as legal advice on any subject matter. If, after reading this guide in full, a clinician is interested in providing abortion via telehealth, they should reach out to an attorney at one of the resources listed in Part V(B) and conduct an individualized risk assessment. An individualized risk assessment consists of working with an attorney to determine a clinician's individual risk tolerance and risk exposure, as related to providing telehealth abortions regardless of patient location. Some questions a clinician might ask themselves when conducting this risk assessment include: ■ How frequently do I travel to states hostile to abortion? Do I have family or friends who live in hostile states and whom I plan on visiting frequently? ■ Am I comfortable obtaining medication abortion pills and mailing them to patients in hostile states, rather than going through a pharmacy? ■ In which states do I hold medical licenses? Am I willing to forgo licensure in a hostile state and still provide abortion care to patients in that state? ■ Have I done everything I can to remove my name and address from public databases? This is a non-exhaustive list of considerations. A clinician who is conducting an individualized risk assessment will work with their attorney to evaluate their personal risk tolerance and potential liabilities. Here is a non-exhaustive list of legal resources for clinicians: Fill out this form to be contacted by legal counsel within 24 hours This expanding database hosts webinars, memos, and other resources for abortion clinicians. Call 212-899-5567 and leave a message with your phone number. An attorney will call you back and speak to you for free. For legal and practical advice about becoming a telehealth abortion provider, contact info@theActGroup.org for an individualized consultation. The views expressed in this guide do not necessarily reflect the views of Columbia University or Columbia Law School, if any. This guide is licensed under a Creative Commons Attribution Share Alike 4.0 International License. 27 It may be freely reproduced as long as it is correctly attributed. 2023-24 Legis. Sess., (N.Y. 2023), https://www.nysenate.gov/legislation/bills/2023/S1066/amendment/B. Telehealth, National Institute of Biomedical Imaging and Bioengineering, https://www.nibib.nih.gov/science-education/science-topics/telehealth (last visited April 17, 2024). After Roe Fell: Abortion Laws by State, Center for Reproductive Rights, https://reproductiverights.org/maps/abortion-laws-by-state/ (last visited April 17, 2024). 3 See, e.g., N.Y. Crim. Pro. § HIPAA Privacy Rule and Disclosures of Information Relating to Reproductive Health Care, HHS, https://www.hhs.gov/hipaa/for-professionals/privacy/guidance/phi-reproductive-health/i ndex.html (last visited Apr. 18, 2024). 22 See Steps to Becoming a Shield Provider, ACT Group, https://www.bloomberg.com/news/articles/2023-06-24/on-roe-v-wade-anniversary-abor tion-patients-face-rising-costs-long-travel?embedded-checkout=true (last visited Apr. 18, 2024). HIPAA Privacy Rule To Support Reproductive Health Care Privacy, HHS, https://www.federalregister.gov/documents/2024/04/26/2024-08503/hipaa-privacy-rule -to-support-reproductive-health-care-privacy (Apr. 26, 2024). See Daly Barnett, Digital Security and Privacy Tips for Those Involved in Abortion Access, EFF (May 4, 2022), https://www.eff.org/deeplinks/2022/05/digital-security-and-privacy-tips-those-involvedabortion-access; see also Guides from Digital Defense Fund, DDF, https://digitaldefensefund.org/ddf-guides (last visited Apr. 18, 2024). https://creativecommons.org/licenses/by-sa/4.0/ extradition of a person subjected to criminal liability based on providing, assisting, receiving, or supporting a legally protected health activity (see Part I(B) for definition) performed in NYS. In order to qualify for protection, the clinician must be licensed and located in B. C.

Part II ("NYS Clinicians Providing Abortion to NYS

Part III ("NYS Clinicians Providing Abortion to

patient was located. This creates legal questions that may ultimately be resolved by the courts.

See supra Part I(B): Glossary (defining "Reproductive Health Services").

See supra notes 14-16 (detailing changes enacted by the New York shield law).

An order from a court to provide evidence or testimony

Many clinicians who provide abortion via telehealth to

The Health Insurance Portability and Accountability Act (HIPAA)

V. NEXT STEPS A. Individualized Risk Assessment

Here is a non-exhaustive list of legal resources for clinicians:

Fill out this form to be contacted by legal counsel within 24 hours

Lawyers for Good Government: Reproductive Health Legal Assistance Project

This expanding database hosts webinars, memos, and other resources for abortion clinicians.

NYS Attorney General Letitia James' Reproductive Rights Hotline

The Abortion Coalition for Telemedicine (ACT)