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Telemedicine Abortions Just Got More Complicated For Health Providers

NPR, September 26, 2022

Allison Case, a family medicine physician, spends much of her time working in a hospital where she delivers babies and provides reproductive health care services, including abortions…In the U.S., more than a dozen states severely restrict access to abortion, and almost as many have such laws in the works. Across the country, since Roe v. Wade was overturned, clinics that do provide abortions have seen an increase in demand. Many clinics rely on help from physicians out of state, like Case, who are able to alleviate some of the pressure and keep wait times down by providing services via telemedicine. But as more states move to restrict abortion, these providers are finding themselves navigating an increasingly complicated legal landscape. Is abortion by telemedicine legal? Experts differ. Medication abortions work for most people who are under 11 weeks pregnant, and research suggests medication abortion via telemedicine is safe and effective. Yet many states have enacted legislation to ban or limit access to telehealth abortions. But it’s not always clear what that means for doctors like Case who are physically located in a state with abortion restrictions but have a license that enables them to provide care via telehealth to patients in states where it is legal. Case says she has consulted several lawyers about the legality, and none of them had a concrete answer for her. “One lawyer was like, ‘If anyone tells you they think they know [or] they have certainty about this stuff, they’re out of their mind’,” she says. In many states, patients seeking a telehealth abortion have to be physically present in a state where telemedicine abortion is legal, even if it’s just to have a brief virtual consultation with a provider, who may be located in an entirely different state. These providers are finding themselves in a murky gray area legally, having to weigh how much risk they’re willing to assume to care for their patients, or consider halting this aspect of care altogether. Katherine Watson, a law professor and medical ethicist at Northwestern University Feinberg School of Medicine in Chicago, says this is uncharted territory. “The stakes are so high. We’re talking about something that’s a protected right in one state and a felony in a sister state,” Watson says. “And the map is a patchwork. So this is an absolutely radical change.” People have to understand the distinction between the letter of the law and the enforcement environment, she says. Even if the law does not explicitly criminalize what doctors like Case do, the enforcement environment can ensnare some of them in legal trouble.

California Abortion-Info Law Ups Stakes in Online War Between States

Axios, September 29, 2022

California’s unprecedented new law to bolster protections for abortion-related personal information held by tech companies marks a new phase in the deepening legal fight between red and blue states over digital regulations. Why it matters: With Congress deadlocked over national laws to govern online privacy and free speech, states are stepping into conflicts over abortion rights and censorship and setting their own, sometimes contradictory rules. Driving the news: California Gov. Gavin Newsom signed into law Tuesday an abortion rights bill with a provision that protects reproductive digital information housed by companies headquartered or incorporated in the state. The law allows those firms to resist efforts by other states to serve them with warrants in the course of enforcing anti-abortion laws. The big picture: California’s move follows conflicts in Texas and Florida over laws intended to prevent tech platforms from discrimination against “points of view.” Different Federal appeals courts have dismissed Florida’s law but upheld Texas’, setting up an almost certain Supreme Court case to resolve the conflict. Between the lines: As the partisan divide between Democratic-led and Republican-dominated states grows, states are increasingly passing laws governing the digital realm that put them at direct odds with one another. What they’re saying: The new California law, AB1242, “gives [tech companies] a way to protect the privacy of their customers… We have given a tool to our tech companies to be our partner in protecting health privacy,” California assembly member Rebecca Bauer-Kahan told Axios. “It’s a really strong step forward if the goal is to make California sort of this sanctuary state for abortion information,” Hayley Tsukayama, a legislative activist with the Electronic Frontier Foundation, told Axios. “We’re seeing legislative strategies in states that are outlawing abortion, so we’re trying to respond in kind, where abortion is legal.” What’s next: Bauer-Kahan said she and California attorney general Rob Bonta are working with the White House to tell other states about the bill and urge them to pass similar laws: “The more states that would like to do this, the better.” Yes, but: “For the tech companies, it’s a tight spot to be in,” Aaron Cooper, a partner at D.C. law firm Jenner & Block and former Senate counsel, told Axios.

Abortion Upends the Battle for a Dozen Key Governorships

POLITICO, September 25, 2022

The battle over abortion rights will be won or lost in state capitals, not Washington. That reality has in the past three months upended battleground governor races — where the winners could quite literally determine the level of access to abortion for millions of women. And the way candidates are running on the issue could hardly be more polarized: Democrats are going all in. Republicans want to change the topic. Spending on abortion-related ads shows how thoroughly abortion has transformed these races, giving Democrats an opening to go on offense in an otherwise challenging year for them to be on the ballot. Since the Supreme Court overturned Roe v. Wade in June, Democratic gubernatorial candidates and outside groups have spent nearly $34 million on television ads that mention abortion, according to data compiled by the ad tracking firm AdImpact. Republican gubernatorial candidates, by contrast, have collectively spent around $1.1 million on TV ads mentioning abortion. Instead, they’re focusing on issues such as the economy or crime, arguing Democrats are ignoring the issues they believe voters care about the most. Thirty-six states are holding governor contests this year, and about a dozen of them are expected to be competitive. The issue is top of mind for voters in states like Arizona, Michigan and Wisconsin, where pre-Roe laws banning abortion in nearly all cases are being challenged in court — and where the governor will play a key role in setting policy when legislatures reconvene in 2023. On Friday, an Arizona court said that a 19th-century abortion ban can take effect, drawing cries of outrage from Democrats there — and mostly silence from Republicans. “I’m mourning today’s decision,” Katie Hobbs, the Democratic nominee for the state’s open seat, said in a statement. “We now must turn our anger into motivation to win in November and restore our fundamental rights.” Republicans control more gubernatorial mansions across the country heading into November, 28 to 22 for Democrats. But more Americans live in a state with a Democratic governor than a Republican one, a balance that forecasters predict will be unchanged after the election. North Carolina Gov. Roy Cooper, chair of the Democratic Governors Association, told an election forum earlier this month that abortion is the rare issue that animates both parties’ bases and moderate voters at the same time.

How Overturning ‘Roe‘ Affects College Students From Anti-Abortion States

Rewire News Group, September 28, 2022

After the Supreme Court overturned Roe v. Wade in June, abortion rights supporters turned out in droves to protest the loss of the constitutional right—especially young people. College students across the country are demanding their universities take action in the fight for reproductive rights, but few have outwardly shown support. With abortion banned or threatened in 12 states and threatened in another 14, students are left wondering how to safely seek abortion care while avoiding unwarranted legal implications. People in their 20s obtain 60 percent of abortions in the United States. Teenagers between 18 and 19 years old obtain another 12 percent. In this post-Roe world, young people face even more obstacles and anxiety in seeking reproductive care, and for those in college, accessing care adds another complicated layer, as those who attend school outside their home state risk the security of insurance coverage. Most schools encourage their students to maintain health insurance while registered for classes—some even require it. For students who are not covered by their parents’ insurance plans, universities often offer a school-sponsored health-care program. Under these plans, like New York University’s Wellfleet coverage, students are covered for all University Health Center visits and procedures, in-network physician’s visits, and some out-of-network physicians with small co-pays. While some take advantage of college health programs, many students choose to stay on their parent’s health insurance plans, even if it means technically being insured in another state. Catherine Cohen, a scholar at the Center on Reproductive Health, Law, and Policy at UCLA Law, said this is where the biggest risk lies for students, especially under bounty hunter laws like Texas SB 8. A student from an anti-abortion state could be sued for obtaining reproductive care in their college town. They are still considered to be traveling to obtain care, just on a longer timeline (the duration of a semester or school year). “The statute is, in theory, if you live in Texas, you grew up in Texas, that’s where your parents are and you have some sort of ties back to the state—maybe you’re still registered to vote there or you’re being claimed on your parents’ taxes—and so you’re still considered to be in Texas,” Cohen said. “You could still be sued while you’re in California. Well, not you, but somebody could be sued for helping you get an abortion because Texas still holds some claim over you and you’re violating their law.”

Democrats Introduce New Path to Protect Troops’ Abortion Access

Defense One, September 28, 2022

Democrats are renewing their push to protect service members’ access to abortion ahead of the midterm elections, arguing that troops shouldn’t be stripped of rights based on where the military stations them. The Supreme Court’s decision to overturn Roe v. Wade and the flood of abortion regulations enacted by more than a dozen states that followed left 40 percent of active-duty women stationed in the United States with “no or severely restricted” access to abortion, according to a RAND report released this month. Advocates for troops freedom of choice argue that, unlike civilians, people in the military don’t get to choose where they live, and can be ordered to go to several states with large military footprints, including Texas and Florida, that are implementing abortion bans or restrictions. In June, Democrats introduced legislation that would remove the restrictions that forbid Defense Department medical facilities to perform abortions except in cases of rape or to save a mother’s life. The legislation, intended to ensure troops can access abortions regardless of where they’re stationed, has so far been stalled in Congress. Now lawmakers are looking at other ways to make it easier for troops and dependents to access the procedure. On Wednesday, Sen. Jeanne Shaheen, D-N.H., plans to introduce an amendment to the 2023 defense authorization bill that would ensure troops have the time and money needed to cross states lines for an abortion if they are stationed in a state that bans the procedure, according to text of the proposal shared with Defense One. The amendment would provide “convalescent leave” to troops who need to travel for an abortion. Service members stationed in the continental United States would get 10 days, while those based internationally would get 20. Anyone having to travel more than 50 miles from their base would also be eligible to receive an allowance for the transportation expenses under the Joint Travel Regulations.

ICYMI: In Case You Missed It

The National Partnership is proud to support #AbortionJustice. Check out guest blogger Morgan Hopkin’s @allaboveall compelling essay on the abortion access crisis and her bold prescriptions on how to fix it. https://t.co/BK4wAaZ2ON

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Note: The information contained in this publication reflects media coverage of women’s health issues and does not necessarily reflect the views of the National Partnership for Women & Families.