Gov. Kathy Hochul says she’s confident a law he signed Friday to protect The state’s abortion providers will go to court in the face of anticipated constitutional challenges, and some doctors are willing to take their word for it.
The governor signed the measure on the eve of the one-year anniversary of the U.S. Supreme Court’s overturning of Roe v. Wade to legally protect New York doctors who prescribe abortion drugs to patients who live in states where they may be restricted or prohibited.
The governor made it clear Friday that the state will not help other states that decide to prosecute New York abortion providers for using telehealth medicine to send abortion pills to patients in states where it is criminalized. New York will not extradite, issue subpoenas or assist with a related investigation, Hochul said.
“Today, we made a strong statement and said that doctors who choose to help these women in other states can prescribe and send them abortion pills,” the governor said after signing the legislation. “It will be a reality for millions of American women to have more control over their own lives, destinies and health care.”
Lawyers and medical providers continue to question the constitutionality of the law and expect legal challenges at the state and federal level.
“It’s shocking how often we get asked for what we do in the normal course of business,” the governor said. “If they want to challenge the constitutionality of our actions here today, we will defend it in court and win.”
Hochul said he will make sure the state has adequate resources to win potential court battles.
“The work we’ve done so far has been intense and demonstrates that this is a fundamental constitutional right that we have in New York,” he said. “We’re ready for any lawsuits before they happen.”
Advocates say the attorney and medical experts have been working on the law since last March, two months before the Supreme Court’s decision to overturn Roe v. Wade leaked publicly amid earlier challenges in Texas.
Senate sponsor Sen. Shelley Mayer is equally confident her legislation will withstand anticipated legal challenges. He argues that the Supreme Court’s Dobbs v. Jackson decision overturning Roe empowered the states, and a person must be physically present in another state to violate the interstate extradition clause of the Constitution.
“The law, we think, is pretty clear,” Mayer said. “Until we have a Congress that is willing to adopt a federal rule, states are free to adopt their own legislation that was passed by a majority in both chambers and signed by the governor. [under Dobbs]. Extradition is based on physical presence in a state and then fleeing those conditions. These doctors and providers will not be physically present in Texas and Florida; will engage in their professional work here.”
The use of telehealth appointments, which became commonplace during the COVID-19 pandemic, has a framework in its infancy, but Mayer says the law specifies protections for telemedicine for care reproductive health and no other service.
“There were concerns about whether this would go beyond reproductive health care, if other doctors were doing telehealth and were not licensed in New York…but the field of reproductive health care is very defined in the statute. So I think we were in good shape. We’re in new territory here, but we’re not the only state.”
Massachusetts passed a similar law last year protect doctors in this state who provide abortion care from litigation directed by other states, including the use of telehealth.
Officials from other states have threatened New York abortion providers who provide abortion care to out-of-state patients. A small number of doctors and physicians in the state have decided to take the risk regardless of the potential danger to their medical license.
Dr. Linda Prine has practiced medicine for more than four decades and is one of the providers who will use telehealth to prescribe medical abortion pills in other states. The New York City medical provider says it’s willing to test the legal waters if it means helping patients across the country who need reproductive care.
“I think we have to take that risk, I think we have to do the right thing,” he said Friday. “People need our help. That’s why we go into medicine.”
Prine, 71, is poised to lead the way to help people outside of New York continue to have access to abortion and reproductive care. She says she is confident in the confidence of Governor Hochul, Senator Mayer and other state officials in the new law.
“I think New York State really has our backs and we’re going to be safe,” he said. “They won’t let us be extradited, they won’t let us go to jail. Maybe I do it out of belief rather than knowledge of all the legal pros and cons, like when you take a drug that you trust you know your doctor is giving you the right medicine. So I trust that my lawyers have read all of this carefully.”
Christopher Bopst, a constitutional attorney in Buffalo, says the law is written to circumvent federal laws requiring extradition and the Constitution’s full faith and credit clause, which requires state courts to uphold laws and court decisions from other states. But he added that a ruling could go either way.
He hopes the state law will be part of an ongoing national legal conversation on the issue.
“A state that is very anti-abortion is not going to just sit around,” Bopst said. “They’re not just going to say, ‘OK, let your providers act with impunity and ship drugs to residents of our state.’ We’re going to do something about it, or we’re going to try to.”
But the governor and lawmakers say New York is up for the fight and will ship more abortion pills out of state in the coming days.
“Just the utmost respect for these providers who are willing to take some degree of risk,” Mayer said. “I mean, nothing’s going to happen to them in New York, we don’t think so. Yeah, they’re going to sue us, but we think we’re going to come out victorious. We’re pretty confident about that.”
