New York Shield Law Would Protect Clinicians Mailing Abortion Pills to Patients in Red States

Update Jan. 24, 8:56 p.m. PT: The New York Senate passed the telemedicine abortion provider shield bill on Jan. 24, sending the legislation to the Assembly, the lower house of the state legislature. After it passes through this chamber, it heads to Gov. Kathy Hochul (D) for her signature.


New York could become the second state to pass a shield law extending to telemedicine abortion providers serving out-of-state patients. 

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Pro-abortion rights protesters demonstrate outside the Planned Parenthood clinic on Aug. 6, 2022, in New York City. (Robert Nickelsberg / Getty Images)

On Jan. 9, New York state Senator Shelly B. Mayer (D) introduced legislation that would allow licensed clinicians in New York to provide telemedicine abortion services to patients located in states banning or severely restricting medication abortion. The bill passed out of committee on Jan. 17 and will soon be introduced in the Assembly by Member Karina Reyes (D). If passed, New York would become the second state after Massachusetts to pass a shield law extending to telemedicine abortion providers serving out-of-state patients. 

“S1066 makes it clear that New York State will not be complicit in other states’ reckless attempts to punish providing, receiving, and helping others get the abortion care they need,” said Donna Lieberman, executive director of the New York Civil Liberties Union. “As forced pregnancy states attempt to criminalize pregnant people across the country, New York must find every legal pathway possible to protect those who provide and seek care from retribution and expand abortion access for all.”

Co-sponsors of the Senate bill include state Sens. Cordell Cleare, Nathalia Fernandez, Michael Gianaris, Andrew Gounardes, Timothy M. Kennedy, Liz Krueger, Julia Salazar, Luis R. Sepúlveda, Toby Ann Stavisky and Lea Webb. The bill is supported by a wide range of organizations, including the Center for Reproductive Rights, the New York State Academy of Family Physicians, SisterSong, Planned Parenthood Empire State Acts, the National Institute for Reproductive Health (NIRH) and the American College of Obstetricians and Gynecologists District II.

New York must find every legal pathway possible to protect those who provide and seek care from retribution and expand abortion access for all.

said Donna Lieberman, executive director of the New York Civil Liberties Union

“NIRH welcomes this bill, along with other measures, that will protect and expand access to abortion care by making it more difficult for hostile, anti-abortion states to punish providers,” said NIRH president Andrea Miller. “As the anti-abortion movement continues to show it will stop at nothing to punish those offering, seeking or supporting care, state and local leaders across the country should be using every lever of power they have to protect and expand access to abortion.”

The proposed law would shield clinicians and pharmacists throughout the state from criminal prosecution, extradition, loss of license or malpractice insurance, and from subpoenas of their medical records for prescribing and sending abortion pills to people who need them anywhere in the United States.  

Since the fall of Roe last summer, millions of people across the country now live in states with no local access to abortion care. Thirteen states now fully ban abortion and 18 statesformer have laws restricting telemedicine abortion, despite an FDA decision in December of 2021 allowing it. Many people are unable to travel or get pills or procedures in a timely fashion, putting them at risk of complications of pregnancy.

“The situation is dire in the restricted states,” said Dr. Linda Prine, co-founder and former medical director of the Reproductive Health Access Project and an organizer of Health Care Across Borders, formed to support the legislation. “Funding is less available and many people are now in the second trimester before they can get what they need to travel for appointments, or get pills from overseas or via community networks. The medical risks increase with gestational age and it goes without saying that self-managing a later abortion at home can be a very difficult experience. We need to impress upon the legislators that this is a public health emergency that deserves action now.”

Abortion pills are safe and effective when used in the first 12 weeks of pregnancy. Telemedicine abortion with pills by mail became widespread during the COVID pandemic and is now available in 25 states and D.C. Research shows that telemedicine abortion is just as safe as in-clinic medication abortion. 

The New York law would mean people living in states with abortion bans can receive telemedicine abortion care from New York-based medical providers and obtain FDA-approved abortion pills promptly by mail, with ongoing telemedicine support from the prescribing clinician during the abortion process.

“This law will solve a piece of the abortion access problem,” said Prine. “Before Roe fell, 75 percent of people got their abortions under eight weeks. Early abortion is safer, and people want to get their abortion right away. Now, it’s really hard in all of these red states. If you can get an abortion at all, it’s hard to get it early. This law doesn’t help people with fetal anomalies who are 13 plus weeks. It doesn’t help when people need procedures and can’t have them. But this would at least allow people to go back to having a really early abortion in the safety of their own home. It would be a big step towards alleviating the suffering.”

Some have expressed concerns that states might criminally prosecute people receiving abortion pills. 

“There was this narrative that this might be dangerous to people in the South if we started mailing pills there. And we’re like, wait a minute. People need their pills. The laws so far are against the providers of pills, not the patients. Patients are getting pills where they can, but they’re getting them later in pregnancy than they should be getting them. Now they will have the option of quickly getting their pills from a licensed clinician. And there’ll be FDA-approved pills instead of paying a lot to get them from an overseas pharmacy with no directions on how to take them. This is harm reduction. What we’re doing is not adding risk. We are reducing risk.”

In the rare event that someone has to seek local medical care in states with abortion bans, Miller said patients do not need to reveal they have taken abortion pills.

“If you go and seek medical care, you have no obligation to say you used abortion pills and there’s no way to tell,” said Miller. “There’s no test that can be taken to determine you used them. It’s not like they can run a blood test to know you did it. It doesn’t show up. There’s no distinction that can be drawn between a medication abortion and a spontaneous miscarriage or spontaneous abortion.”

This would at least allow people to go back to having a really early abortion in the safety of their own home. It would be a big step towards alleviating the suffering.

Dr. Linda Prine, medical director of the Reproductive Health Access Project

Others expressed concerns that providers offering this care would not be guaranteed protection from criminal and civil lawsuits in red states.

“Lawyers are telling us, you’re still at risk. Bad things can happen to you,” said Prine. “We’re like, look, abortion doctors are always at risk. We signed up for that. We know that that’s part of doing this work. Maybe this is increasing our level of risk, and maybe it’s a different kind of risk, but we’re used to being at risk and we’re okay with that. So let us decide the risks we want to take. Just give us the best law you can and we’ll run with it because people need it. People really, really, really need it. They needed it months ago.”

Prine calls for creative approaches to increase reproductive healthcare access now.

“We learned from the November election that people in our country really want abortion to remain accessible. Yet despite that, the red states remain on the offensive and plan to pass more restrictive laws. Thus, those of us in blue states need to become equally proactive and get positive things done,” said Prine. “All this hand wringing about possible criminalization of this and that, is not going to help people get the abortions they need. We need to step up and do some things. We would like to do it legally, and so we are trying to pass these shield laws.”

Prine would like blue states to do even more. 

“We should also think about more radical laws we could pass, like making mifepristone over the counter or available via ‘standing orders’ for pharmacists or nurses, or legalizing advanced provision. Blue states should pass laws that challenge the FDA regulations just like red states have done when they make this federally-approved medication illegal. Let’s make it more accessible. We would actually be following the science to do so. And if we can’t get laws passed, we may need to be proactive anyway, because people desperately need our care. We may just need to mail those pills no matter what. I don’t think the optics of doctors going to jail because they are getting medications to people who need and want them will win the Republicans’ votes. Those of us in the blue states really need to step up and be proactive.”

The Reproductive Health Access Project urges New Yorkers to contact their legislators to support the bill.

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About

Carrie N. Baker, J.D., Ph.D., is the Sylvia Dlugasch Bauman professor in the Program for the Study of Women and Gender at Smith College. She is a contributing editor at Ms. magazine. You can contact Dr. Baker at cbaker@msmagazine.com or follow her on Twitter @CarrieNBaker.