On Friday, June 24, 2022, the Supreme Court issued its ruling in Dobbs v. Jackson Women’s Health Organization, which overturned Roe v. Wade, the landmark decision which maintained a constitutional right to abortion for nearly half a century. The Dobbs decision, in short, opened the door for state legislatures to determine the right to, as well as access to, abortion care.
Following Dobbs, we have seen tremendous change in abortion laws across the country, affecting not only individuals seeking abortions, but the health care practitioners who administer such services. For example, several states have banned abortions except in the case of a medical emergency or serious health risk for the pregnant patient, whereas other states have enacted near-total bans on abortions. With this drastic and rapid change in the laws across the country, many practitioners are left seeking clarification on what exactly they are and aren’t allowed to do, especially in the context of treating a patient who resides in a state where such services are in fact, illegal, even though the practitioner renders medical services in a state where such services are legal.
As far as New York goes, to date, the Education Law provides that a health care practitioner’s recommendation or performance (acting within their scope of practice) of reproductive health services (including abortions) on a patient who resides in a state where same is illegal, does not, by itself, constitute professional misconduct. Moreover, N.Y. Educ. Law § 6531-B prohibits “any license, certification or authorization […] be revoked, suspended, or annulled or otherwise subject to any other penalty or discipline […] solely on the basis that such health care practitioner performed, recommended, or provided any such reproductive health services […] for a patient who resides in a state wherein [such care] is illegal.”
Recently, on June 25, 2023, New York Governor Kathy Hochul signed Senate Bill S.2475-B, which, among other things, amended an array of laws, including extending the protections set forth in N.Y. Educ Law § 6531-B to apply to gender-affirming care. Now, a health-care practitioner’s recommendation or performance (acting within their scope of practice) of gender affirming-care (defined as “any type of care provided to an individual to affirm their gender identity or gender expression; provided that surgical interventions on minors with variations in their sex characteristics that are not sought and initiated by the individual patient are not gender-affirming care”) on a patient who resides in a state where same is illegal, does not, by itself, constitute professional misconduct. Moreover, the law now affords the same license, certification or authorization protections to health care practitioners providing such gender-affirming services. Lastly, Senate Bill S.2475-B also amended legal procedure in New York by prohibiting subpoenas from being issued, apart from a few exceptional circumstances, where such subpoena concerns “an out-of-state proceeding relating to any gender-affirming care which was legally performed, sought, received, or supported in this state […]”.
As laws surrounding healthcare services continue to evolve, it is imperative that health care practitioners and other medical professionals stay abreast with the laws of each state where they render care in order to protect both their patients, and themselves.
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