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Florida’s 6-week abortion ban could set up clash with shield law states

The law prohibits telehealth appointments for abortion, but some groups are already using out-of-state physicians to prescribe the necessary medications.
Pro abortion rights protestors hold signs saying "Keep Abortion Legal" and "End the Six Week Abortion Ban"
Before the six-week ban went into effect, Florida had one of the most permissive abortion laws in the South, allowing abortion through 15 weeks of pregnancy. Chandan Khanna / AFP via Getty Images file

With Florida’s six-week abortion ban now in place, telehealth appointments with out-of-state physicians and mail-order abortion pills could play increasingly important roles in allowing women there to safely end their pregnancies. Advocates on both sides of the abortion debate agree that the practice is likely to be challenged in court, as red states assert their right to curtail abortion and blue states attempt to protect abortion providers.

Although Florida law prohibits telehealth appointments for abortion at any stage of pregnancy, women can still make virtual visits for medication abortions with physicians in other states where the procedure remains legal, said Rachel Rebouché, dean of the Temple University Beasley School of Law in Philadelphia.

Seven states — California, Colorado, Maine, Massachusetts, New York, Vermont and Washington — have passed so-called shield laws to protect physicians who provide reproductive health care, regardless of where the patient is located, Rebouché said. Providers in some of those states serve patients across the country, including in states where abortion is restricted or outlawed.

A group called Aid Access already uses out-of-state physicians to provide abortion pills via telehealth to 9,500 women in the U.S. each month, including up to 800 per month in Florida, founder and executive director Dr. Rebecca Gomperts said.

Medication abortion — which involves a combination of the pills mifepristone and misoprostol — accounted for 63% of all pregnancy terminations in the U.S. in 2023, according to the Guttmacher Institute, a research group that supports abortion access.

And although the Food and Drug Administration has only allowed abortion pills to be prescribed through telehealth since 2020, 16% of all medication abortions now involve virtual visits or online appointments, says the Society of Family Planning, a research group that supports reproductive rights and abortion.  Its data is based on numbers submitted by abortion providers.

The convenience of telehealth abortions has likely fueled the recent increase in abortion, in spite of pregnancy termination being banned in 14 states and tightly restricted in five others, Rebouché said. There were more than 1 million abortions in 2023, the first full year after the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization overturned the constitutional right to abortion, a 10% increase since 2020 and a 12% increase since 2019, according to Guttmacher.

Opponents of abortion say out-of-state doctors have no right to undermine a state’s laws.

“States have a duty to protect their most vulnerable citizens and their families from harm,” said Erin Hawley, vice president of the Center for Life and Regulatory Practice with the Alliance Defending Freedom. “One state cannot intrude on another state’s efforts to protect the lives and health of its citizens, including the lives and health of unborn children and their families. Pro-abortion states that don’t recognize the basic principle that life is a human right cannot undermine the laws of other states simply because they don’t agree with them.”

A rise in medication abortion

Recognizing the growing popularity of medication abortion, opponents of abortion have been working to curb the use of abortion pills, including their distribution through the mail.

Anti-abortion rights doctors and groups sued the FDA in 2022 in the hope of restricting access to mifepristone. The Supreme Court heard oral arguments in the case in March — Hawley argued on behalf of the Alliance Defending Freedom, which represented the anti-abortion doctors and groups — and the justices are expected to issue a decision this summer. 

As more states restrict abortion, telehealth appointments with out-of-state doctors are likely to become more popular, said Dr. Abigail Aiken, an associate professor at the LBJ School of Public Affairs at the University of Texas at Austin. In the first week after Texas passed its six-week abortion ban in 2021, the average number of requests for medication abortion to Aid Access increased from 11 per day to 138 per day.

For many women seeking an abortion, telehealth appointments are more convenient and less expensive than traveling to another state. Abortion is severely limited across the South, and the closest state to Florida with abortion access beyond six weeks is North Carolina, where it is allowed through 12 weeks and six days of pregnancy.

Until last week, Florida had one of the most permissive abortion laws in the South, allowing abortion through 15 weeks of pregnancy. Women throughout the Southeast have traveled to Florida for abortion care. In the first six months of last year, 13% of people undergoing abortions in Florida were from other states, according to the Guttmacher Institute.

Now, the closest abortion providers for women in many Southern states will be in Illinois, said Michelle Colón, executive director of SHERo Mississippi, which helps women access reproductive health care. Women with low incomes may not be able to afford the trip, she said.

Florida women who travel out of state for abortion can expect to pay more than $2,000 in medical costs, as well as travel and child care expenses, said Dr. Jennifer Lincoln, an OB-GYN and founder of Three for Freedom, an online hub that helps people learn how to access mail-order birth control, morning-after pills and abortion pills.

About 84,000 women had abortions in Florida last year, accounting for about 1 in every 12 abortions in the country. Even with telehealth, out-of-state abortion providers will be hard-pressed to serve that many additional patients, she said.

“We can’t just pretend that 84,000 patients are going to be able to be easily absorbed into other clinics across the country,” Lincoln said. “Those who can’t travel or who can’t access pills will be forced to give birth or may resort to unsafe methods of pregnancy termination.”

A legal clash

Florida physicians who violate the state’s abortion law — which includes exceptions for rape, incest and human trafficking up to 15 weeks of pregnancy, as well as later in the pregnancy to save the life of the mother — can be jailed for up to five years.

If an out-of-state doctor were to prescribe abortion pills for a Florida patient, Florida’s attorney general could ask law enforcement in the state where the doctor practices to extradite the provider for prosecution or for help with a civil or criminal investigation, Rebouché said.

Prosecuting doctors in states with shield laws could prove more difficult. Although its attorney general could still charge an out-of-state doctor with breaking the law, Florida would not be able to bring the doctor to trial if it does not have jurisdiction over that provider, Rebouché said. States with shield laws have vowed not to extradite doctors who perform abortions, as long as they are not fleeing from a state where the practice is banned. A doctor who resides in a state with a shield law would not be considered a fugitive, even if prosecutors in another state try to charge him or her with breaking their state’s abortion law, she said.

That’s a huge change from the way states normally operate, she said. State law enforcement agencies typically cooperate with one another, agreeing to extradite accused criminals to other states for trial. A state like Florida could end up suing a shield state for interfering with its laws, she said, though courts have not yet considered a challenge to any state’s abortion shield law.

The Florida attorney general’s office did not respond to a request for comment.

Doctors who provide telehealth services are usually only allowed to treat patients in the same state, said Harry Nelson, a Los Angeles attorney who specializes in health law.

In March, attorneys general from 16 conservative states, including Florida, wrote to Maine officials to protest against that state’s shield law, which was passed in April and which protects both providers of abortion, as well gender-affirming care. The letter, which focused on gender-affirming care and doesn’t mention abortion, claims that Maine’s shield law violates the Constitution’s full faith and credit clause, which requires that state courts respect the laws and judgments of courts from other states.

“The federal Constitution, in short, precludes Maine’s novel effort at state-sanctioned culture war litigation tourism,” they wrote.

Because abortion shield laws are new and have never been tested in court, no one can say how judges will rule, Rebouché said. A conflict between states could wind up, like so many abortion disputes, back in front of the Supreme Court.

“We are opening up a can of worms if states are going to pick and choose which of their neighbors’ laws to respect,” said Kristi Hamrick, vice president of Students for Life Action, a major anti-abortion group. “The attempt by some states to create a little safe haven for abortion will not be successful. I think we will end up in court.”

Florida voters will have a chance to weigh in this November, when a constitutional amendment to protect abortion access will be on the ballot.