The January 30, 2025 issue of the New England Journal of Medicine contains an article entitled “Providing Interstate Telehealth Abortion Services to Patients in Restrictive States.” In the second sentence, the authors write: “The complexities of telehealth regulation in the United States often result in areas of liability and concern for clinicians providing abortion services and for states attempting to protect patients and clinicians.”
Those concerns were undoubtedly intensified on January 31 when Dr. Margaret Daily Campbell was indicted by a Louisiana grand jury for violations of that state’s anti-abortion law. The charge against Dr. Campbell, a New York licensed physician, was that she caused an abortion to occur in Louisiana by providing a pregnant female minor with abortion-inducing drugs that had been obtained by the patient’s mother through the internet from Dr. Campbell’s practice. The Louisiana District Attorney has stated that the pregnant female wanted the pregnancy and had a “reveal party” planned but her mother coerced her into terminating the pregnancy. However, this is not the first time criminal charges have been brought against physicians prescribing through the internet.
The indictment of Dr. Campbell follows the lawsuit against her commenced on December 12, 2024 by the Texas Attorney General seeking injunctive relief and civil penalties of $250,000 based on Dr. Campbell having prescribed and provided the medications mifepristone and misoprostol to a 20-year old pregnant female without being licensed to practice medicine in Texas. The woman did not inform the biological father of her pregnancy but eventually was taken to the hospital because of severe bleeding. There, the biological father learned that the woman had been pregnant and on returning home discovered the boxes that contained the medications. He then provided information to law enforcement authorities.
The lawsuit is premised on Dr. Campbell’s unlicensed practice of medicine in Texas together with the provision in Texas law that an abortion may be performed in Texas only by a physician licensed to practice medicine in Texas. Moreover, under Texas law a person is prohibited from providing telemedicine services unless holding a full Texas license.
The NEJM authors refer to “shield laws” that have been enacted in over twenty states since the 2022 Supreme Court decision in Dobbs v. Jackson Women’s Health Organization. These laws include provisions protecting against interstate extradition, subpoenas, or summons to serve as a witness in court; prohibiting support of another state’s investigations or prosecutions; and limiting adverse professional consequences, such as loss of licensure, as well as medical malpractice protections and data-privacy requirements.
New York has a shield law. It includes reproductive health services “whether provided in person or by means of telehealth or telehealth services” and when these are provided by a person licensed in New York and physically present in New York they are “a legally protected health activity if the service or care is permitted under the laws of this state, regardless of the patient’s location.”
New Jersey also enacted two bills providing protection for abortion services that were discussed in a September 2022 posting on this blog. The statute blocking extradition does not explicitly refer to care provided over the internet to out-of-state patients.
In response to the Texas lawsuit, New York Governor Kathy Hochul stated her intent to maintain the safe harbor status of New York for abortion providers and patients and both the Governor and Attorney General Letitia James later responded negatively to the criminal filing in Louisiana.
The NEJM authors concluded: “Clinicians who rely on shield laws to provide telehealth abortion services to patients in abortion-restrictive states face uncertain legal protections.” The cases against Dr. Campbell will test the effectiveness of these laws in both a civil and criminal context.
While the Louisiana indictment appears to be the first criminal case concerning abortion care since the overturning of Roe v. Wade by Dobbs, it is not the first instance of a criminal prosecution of a physician located in one state for using the internet to prescribe medication for a patient located in a different state. In the 2007 decision of Hageseth v. Superior Court, a Colorado physician had prescribed a generic form of Prozac for a Stanford University student experiencing a depressive episode who had ordered the medication through an interactive website. The physician was charged with the unlicensed practice of medicine in California. He moved to dismiss the indictment asserting that a non-resident of the state who had never been in the state cannot commit an offense within the state. On appeal, the intermediate Court of Appeal affirmed the denial of the motion to dismiss and rejected the claimed lack of extra-territorial power in a criminal case where the out of state conduct had a detrimental effect in California that the defendant knew could occur. The California Supreme Court declined to review the case further. In February 2009, Hageseth pleaded no contest to the felony charge and received a jail sentence of nine months.
The major premise of the criminalization of abortion services through the internet is that the location of the patient at the time of treatment or diagnosis determines where a practitioner is engaged in the practice of medicine and that a state is empowered to define the terms and scope of the practice of that profession. In 1899, the Supreme Court recognized that the regulation of the practice of medicine was well within the police power of the state government. The police power to regulate is among the powers reserved to the states by the Tenth Amendment. The Interstate Medical License Compact facilitating a physician obtaining licensure in multiple states to be able to practice across state lines is built on the Tenth Amendment. As enacted in New Jersey, it adopts “the prevailing standard for licensure and affirms that the practice of medicine occurs where the patient is located at the time of the physician-patient encounter.” The Interstate Medical License Compact Commission issued a memorandum in December 2023 regarding the impact of Dobbs on medical practice across state borders that provides scant support for internet prescribing without a physical presence in proximity to the patient.
However, the circumstances of abortion-inducing medication are significantly different with a complexity that suggests rather than asking where the care was provided, the question should be where did the abortion occur? The following hypothetical illustrates the conundrum:
Imagine a provider located in New York communicates via telehealth with a patient physically located in Pennsylvania. Because of Pennsylvania rules, the provider cannot mail the pills into that state, so the provider mails them to a P.O. box in New Jersey, where the patient picks them up. The patient, who is traveling to see family, then travels to Delaware, where she takes the mifepristone. Then she goes to Maryland a day later where she takes the misoprostol. Then, when she finally arrives in Virginia, she expels the products of conception. There are six different states in this admittedly far-fetched hypothetical—when and in which one did the abortion take place?
The Louisiana criminal indictment in particular presents a multiplicity of issues that will need to be addressed including conflict of laws questions as well as comity and reciprocity among states under the Privileges and Immunities Clause in Article 4, Section 2, Clause 1 of the Constitution. This encompasses circumstances where extradition to a requesting state may be refused. The impact of federalism and interstate commerce are also involved. This will not be an easy task.