Practicing Post-Roe: Telemedicine

At the forefront of many providers’ minds is the future of telemedicine in the context of providing abortion services. ProAssurance will likely face questions from insureds about whether, and in what circumstances, they can provide medication abortion services via telemedicine and how the provisions of those services may affect their coverage.

The intersection of telemedicine and abortion generally involves “medication abortion services.” In a medication abortion, patients who are within the first 70 days or up to 10 weeks after the first day of a missed period can terminate their pregnancy by ingesting a two-drug regimen (mifepristone and misoprostol). Mifepristone blocks a pregnancy-supporting hormone to terminate the pregnancy, while misoprostol causes uterine contractions to expel the pregnancy. This regimen is an FDA-approved protocol for abortion and has become increasingly popular in recent years, comprising more than half of the abortions in the U.S. in 2020.

Last year, the FDA made it easier for healthcare providers to prescribe the drugs used in medication abortions by lifting the requirement that patients see their doctors in-person before being prescribed mifepristone, the first of the two drugs used in the regimen. The FDA’s actions allowed patients to obtain abortion medication without going into their physical doctor’s offices, or even seeing their own doctor. Many patients turned to telemedicine to consult with a certified doctor online or over the phone and get a prescription mailed by a licensed pharmacy.

Access to medication abortion hinges not only on the FDA’s decision but also on the abortion-specific regulations that are on the books in many states (or soon will be). While some states have directly banned telemedicine abortions, other state regulations – including ultrasound and counseling requirements, waiting periods, and specific in-person dispensing mandates – also play a role in limiting the feasibility of using telehealth for medication abortion. Currently, at least 19 states have specifically banned telemedicine visits for abortion while other states have legislation on the horizon to curtail access to it. Even without an outright ban on telemedicine visits for abortion, if a state bans or restricts abortions, those laws will generally cover telemedicine abortion as well.

Developing an understanding of the state law where the provider is located versus the state law where the patient is located is paramount. For the most part, the law of the state where the patient is located will govern the telemedicine interaction. Providers that offer abortion pills through telehealth into states that have banned the procedure could likely face legal consequences. For example, a healthcare provider based in New York, where abortion is legal, that offers a medication abortion through telehealth to a patient in Alabama would be subject to Alabama’s state law and could face criminal penalties and medical license revocation.¹

Conversely, if the provider is located in a state that bans abortions and attempts to offer a medication abortion to a patient in a non-banned state, there is still the very real potential that the provider’s home state or its medical licensure commission could initiate an investigation and prosecute the provider. For the time being, providers living in states that ban abortion should refrain from engaging in any medication abortion services, regardless of where the patient lives or is located.

Until the law is more fleshed out, the prudent course of action for using telemedicine to provide a medication abortion is to do so only in situations where both the provider and the patient are in states that allow abortions. Even in those situations, the following practice pointers should be considered:

• Document the location of the patient. Have the patient confirm both in writing and orally their physical location at the time of the interaction, including the city and state. The provider should clearly document the patient’s response in the chart.
• Use caution if the patient’s physical location is different from their home state. Post Dobbs, many patients who live in states that ban abortions may travel across state lines into a state that allows abortions to participate in a call or videoconference with a telemedicine provider. Those patients may leave their state and take virtual appointments in their car and then have the abortion pills mailed to a P.O. box or other address near the state border. Though currently untested, there could be a scenario where a provider is investigated or prosecuted for prescribing a medication abortion to a patient who lives in a banned state but traveled outside the state lines for the telemedicine interaction.
• Confirm the state’s licensure practices. Most states require that before a physician can provide telemedicine services, they must obtain a license to practice medicine in the state where the patient is located. Make sure the insured is aware of the licensure requirements for any state they are seeking to practice telemedicine in.
• Confirm the state’s telemedicine laws. Some states that allow abortion in general may still have specific laws that restrict the use of telemedicine in prescribing abortion-inducing medications or may require an in-person encounter before prescribing a medication (abortion-inducing or not). Insureds should be familiar with a state’s specific telemedicine laws before conducting telemedicine in that state.

This essay was provided to ProAssurance by the Starnes Davis Florie LLP law firm.

Published 7/13/2022

REFERENCES

1. Several states, including California, Connecticut, and Delaware, are considering (or have already enacted) legislation that would protect physicians and patients from out-of-state civil actions and/or allow physicians and patients to recover legal costs for the same. The legality of these statutes has not yet been challenged in courts.