In the post-Roe landscape, advocates for abortion rights are pinning hopes on telehealth as one way to provide access in states with newly imposed limits. Startups like Abortion on Demand and Hey Jane have expanded their capacity to offer telemedicine services, prescribing abortion pills by mail in early pregnancy. Pro-access states, including Massachusetts last month, have enacted measures to protect providers of abortion care from legal penalties.
But these efforts, beyond facing legal maneuvers from abortion opponents, are likely to run up against an ostensibly more neutral institution responsible for physician licensing, regulation and discipline: state medical boards.
The U.S. is one of the few countries that requires individual state-by-state licensing for physicians — a system that for decades pre-pandemic kept most physicians practicing in a single state despite national standards, guidelines and regulations for how healthcare is delivered today. For a brief period, the pandemic changed everything: many state emergency orders waived requirements for out-of-state medical licenses, allowing providers to treat patients anywhere in the U.S. Several emergency orders also mandated that insurance companies cover telehealth visits, a boon to many who wanted to avoid risking exposure by traveling to a clinic or hospital setting. Telehealth went from less than 1% of care pre-pandemic to as high as 30% by some estimates.
Beginning in 2021, though, many states’ emergency orders began to expire, and as a result, old regulations have returned in all but 10 states.
“It was really bizarre to see this whole system that made a tremendous amount of sense in the pandemic suddenly just go away without great reason,” said Samyukta Mullangi, a physician and hematology-oncology fellow at Memorial Sloan Kettering who has studied the licensing system.
Then in June came the Supreme Court’s decision to overturn Roe v. Wade, eliminating the constitutional right to abortion and ushering in strict abortion limits in about half the states.
Today most U.S.-based providers offering telemedicine abortions serve patients only in the states in which abortion is still legal. Doctors who may wish to help patients obtain abortion via telemedicine have to navigate new questions of legal jeopardy along with the logistics of obtaining licenses in states with abortion restrictions.
In July, the state of Massachusetts passed a sweeping reproductive rights law that protects its providers who wish to offer telemedicine abortion care to patients located in states where abortion is banned. The law prohibits the extradition of Massachusetts providers who do so, and also prevents Massachusetts law enforcement from providing information regarding any inquiry into such cases. Connecticut passed similar legislation in May, and at least eight other states have enacted measures to protect providers who provide abortion from legal penalties.
Legal sources caution, however, that these protections should not be interpreted as an absolute safeguard for telemedicine visits when the patient is not physically in the same state as the provider.
Kathryn Fay, an OB-GYN physician at Brigham and Women’s Hospital who specializes in family planning, says uncertainty is part of why more providers even in a place like Massachusetts haven’t jumped to offer telemedicine abortion to patients out of their own state. There are still many other questions, she said.
“Even with this protection, who’s going to pay the legal fees if another state brought a criminal case against a clinician?” she said hypothetically. At this point, standard malpractice insurance coverages usually do not explicitly address this. “And even if someone is protected in Massachusetts, but they’re a criminal in Texas, what happens if they’re flying to California and have a layover in Texas?’
“The problem is even legal experts say there isn’t precedent that can be referred to to understand if those holes are actually holes, and how big those holes are,” Fay said.
A related chaos of conflicting state-by-state regulations has long-existed regarding medical marijuana prescriptions and telehealth. Medical marijuana is legal in only 37 U.S. states, and many do not recognize out-of-state registrations for medical cannabis patients. Clinicians typically undergo a state-specific training course to prescribe medical marijuana and the conditions allowed differ by each state. States like South Dakota and Florida currently ban telehealth visits for medical marijuana consultations, despite telemedicine expansions for this purpose during the pandemic by over two dozen states. The varying regulations has led to complications for patients and providers alike.
Meanwhile, the process to become licensed out-of-state has reverted to one entailing significant personal cost to the physician and enormous amounts of paperwork for the vast majority of states. In rare cases, licensure in other states can require an interview with the state medical board. Additionally, to maintain licensure, each state requires updated paperwork, training, and individual fees every one to four years.
“Logistically speaking, for widespread telemedicine abortions, licensing is one of the primary barriers,” Fay said. She finds the thought of trying to become licensed in all 14 of the states currently banning abortions to be daunting. To become licensed in just Massachusetts took over six months. “To replicate that many-fold, seems not only cost-prohibitive, but time-limited,” she said. “I don’t know when a clinician would actually be able to start helping people in those states.”
An agreement known as the Interstate Medical Licensure Compact has gained popularity as a way to streamline the application process across the 34 participating states. The compact seeks to minimize redundancies by sharing information about a physician’s application and eligibility across state lines. However, it does not eliminate costs — on top of the non-refundable $700 fee to join the compact, a physician could still end up paying hundreds of dollars more for each additional license sought.
The history of state-based medical licensing dates to the 13 colonies, before the United States of America was officially founded, said Humayun Chaudhry, president and CEO of the Federation of State Medical Boards, the organization which represents the 71 state medical and osteopathic boards in the United States and its territories.
“Really since the beginning of the nation, there’s been this notion of licensure, discipline, regulation at the local level,” he said. At that time, each colony had its own system for licensing and regulating its physicians. When the United States formed, it was decided that this would remain the purview of individual states, a principle with its basis in the 10th Amendment.
Many, like Mullangi, argue that this system hasn’t kept up with how modern medicine is practiced. She authored an opinion piece in the Journal of the American Medical Association calling for a national license to practice medicine, or, failing that, at least a significant update of medical licensing practices. While in the past, community physicians relied heavily on local resources and made house calls, she explained, today national standards dictate how medical residents are trained, and all physicians must pass national exams to maintain board certification.
“It’s not that we would practice medicine differently in Florida versus New York,” she said.
Chaudhry argues otherwise, although agrees the differences can be subtle given that much of modern medicine is evidence-based. For example, in an urban environment with an abundance of sub-specialty physicians like cardiologists, it would be common practice for a general practitioner to send patients having a heart attack to them for consultation and further care.
“But if you were living in a rural area where there aren’t as many specialists, it may be perfectly acceptable for an internist to manage that case,” Chaudhry explains. “That said, part of the reason that the Federation of State Medical Boards was founded back in 1912 was to encourage common approaches, common standards while respecting the states’ rights under the 10th Amendment.”
Medical boards have many other reasons to retain the current system. They can block competition from out-of-state providers. They have the power to discipline doctors based on complaints, often from patients — through public reprimand, probation or suspending their licenses to practice medicine — without consulting with other bodies. After all, says Chaudhry, the main goal of the state board is to “protect the public, not physicians.”
This is critical in the post-Roe era, as state medical boards use different standards of proof to justify such actions. When it comes to abortion care, therefore, what may be considered grounds for a revocation of a medical license in one state may not be so in another, separate from abortion’s legal implications, which already differ by state. In Ohio, for example, the state medical board is authorized to take disciplinary action against a physician for actions considered a felony, like abortion, even if that service occurred in a different state where the physician was also licensed.
Importantly, state licensing fees often constitute a dominant amount of the state’s medical board or health budget. In fiscal year 2019, for example, Georgia took in $6.4 million from licensing fees; California $56 million.
“It’s hard to ignore that these license fees can total in the millions of dollars,” said Mullangi. “That becomes a very powerful revenue stream for states.”
And there may be political or ideological reasons for boards to maintain strict local control. Medical board members are usually appointed by a state’s governor — not voted for by fellow physicians as is often the case in other trade organizations. Per the Federation of State Medical Boards’ recommendation, at least 25% of the members have no health care background and instead represent “public interest” of the state. A recent Mother Jones investigation found that the state medical board can become stacked with campaign supporters and political allies who can shape boards to execute an anti-abortion agenda. In Iowa, a Catholic priest who had campaigned against Planned Parenthood and fought against telemedicine abortions as early as 2010 was appointed to the state’s medical board by Gov. Terry Branstad. In Ohio, a Covid-19 skeptic and president of Ohio Right to Life was re-appointed to the Ohio medical board by Gov. Mike DeWine earlier this year despite significant backlash.
Chaudhry said the federation of state medical boards has been engaged in “critical conversations” about whether to recommend that states and territories update their policies in light of the Dobbs v. Jackson decision. He encourages lawmakers to work with their state medical boards before proposing legislation.
“We are watching what happens,” he said.
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