New Bill to Give California Doctors Legal Protection for Mailing Abortion Pills

Updated 5:20 p.m. Friday

Doctors in California who mail abortion pills to people in other states would be protected from prosecution under a new bill announced Friday in the state Legislature.

The bill would not let California extradite doctors who are facing charges in another state for providing abortion medication. It would also shield doctors from having to pay fines. And it would let California doctors sue anyone who tries to stop them from providing abortions.

The bill would only protect doctors who are in California. If a doctor left California to provide an abortion to someone in another state, that doctor would not be protected. It also would not protect patients in other states who receive the medication.

State Sen. Nancy Skinner, a Democrat from Berkeley and author of the bill, said her intent is to make sure California residents who are traveling in other states or living there temporarily — like college students — can still have access to medication that's legal in their home state. But she acknowledged the bill would also apply to California doctors who treat patients who live in other states.

“This is essential health care,” Skinner said. “Our health care practitioners should be protected for treating their patients regardless of where their patients are geographically."

Massachusetts, New York, Connecticut, Maryland and Vermont have proposed or passed similar laws, according to Skinner’s office. Connecticut's law, among other things, blocks criminal summonses from other states related to reproductive health care services that are legal in Connecticut while also blocking extradition — unless the person fled from a state requesting them.

“Obviously, if a provider is engaging in telehealth services with someone, even if they do inquire about where they are, they kind of have to take it on faith,” said Connecticut state Rep. Matt Blumenthal, a Democrat and co-chair of that state's General Assembly’s Reproductive Rights Caucus. “We don’t want to make providers their police for their patients. And we don’t want to make them have to do an investigation every time they perform telehealth."

Other states have tried to block the distribution of the abortion pill, known as mifepristone. Attorneys general in 20 states, mostly with Republican governors, have warned some of the nation's largest pharmacy companies they could face legal consequences if they distribute the pill within their states.

Most abortions are outlawed in Idaho, including medication abortions. Blaine Conzatti, president of the Idaho Family Policy Center — a group that opposes abortion rights — said California has a responsibility to extradite physicians who break Idaho laws.

“The arrogance of such a proposal is astounding,” Conzatti said of Skinner's bill. “It flaunts the traditional relationship between states and would upend our federal system altogether.”

Skinner's bill goes beyond abortions. It would also protect doctors for mailing contraceptives and transgender health care-related medications.

California already has laws that prevents courts from enforcing out-of-state judgments on abortion providers and volunteers. That law was aimed at protecting doctors who provide abortions to people who travel to California from other states. Abortion opponents say laws like that are illegal because they violate a clause in the U.S. Constitution that says states must give “full faith and credit” to the laws of other states.

Federal courts have recognized an exception to that clause, including laws in one state that violate the “public policy” of another state. Skinner's law declares it is the public policy of California that doctors should not be charged for providing abortion medication.

“We're very careful," Skinner said.

Legal experts, like Mary Ziegler from the UC Davis School of Law, say these battles will not be resolved easily because they fall in a legal gray area.

“We’re in pretty uncharted territory when it comes to states threatening to try to regulate what other states are doing or what’s legal in one state and not in another,” said Ziegler, who explains that, even if this bill passes, some providers may choose not to prescribe across state lines because of pressure from anti-abortion-rights groups. She says while conservative states have so far declined to punish patients for seeking abortion care, they may alter course if these interstate battles intensify.

“You’re not likely to see a lot of prosecutions of women in the near term, although I think the possibility of that happening more and more is increasing over time,” Ziegler said, adding that some states have what she calls “ambiguous laws” that she thinks “could be exploited by energetic prosecutors to go after women.”

Abortion pills have been legal in the U.S. for more than two decades and can be used up to the 10th week of pregnancy. It's now the most common abortion method in the U.S. A federal judge in Texas is weighing whether to revoke or suspend the U.S. Food and Drug Administration's approval of the drug, a decision that would apply to all states and not just the ones who have outlawed abortions.

“It's not clear exactly what that would mean for California, because the suit raises a lot of really complicated questions about how much authority a judge has to tell the FDA to pull a drug from the market,” said Ziegler. “It's not clear how much the judge could do beyond mandating that that process begin. The FDA doesn't have to use its full enforcement authority to back that kind of decision … to go after people who are continuing to dispense mifepristone.”

Skinner's bill is one of 17 pieces of legislation Democrats have introduced in California this year to protect abortion rights, including proposals to improve access to contraceptives and protect patients' privacy.

KQED’s April Dembosky, and Susan Haigh of The Associated Press, contributed to this report.