SB 345: California’s Abortion Shield Law and the Potential Impact on Medication Abortion Access Nationwide

• September 29, 2023

• Natalie Birnbaum , Legal & Policy Consultant at Repro Solutions, P.C. and Of Counsel at Nelson Hardiman LLP

On Wednesday, September 27, California Governor Gavin Newsom signed numerous abortion and gender-affirming care-protection-related bills, including “shield law” Senate Bill (SB) 345, into law. These laws will directly impact the provision of care to patients, access to medication abortion, and the protection of California providers who render reproductive health care nationwide. The law goes into effect on January 1, 2024.

Understanding the Key Legal Protections Offered by SB 345

S.B. 345, California’s “Shield Law,” provides that California will not deliver a person accused or charged with committing a crime related to abortion/gender-affirming care over to law enforcement officials. This includes providers licensed in California, pharmacists, individuals providing funding assistance, travel assistance, and even information for legally protected care. The law does not preclude subpoenas, licensure actions, warrants, or litigation from occurring, but rather, offers in-state protections from these out-of-state actions.

The law prohibits California law enforcement, government officials, or government contractors from cooperating with out-of-state prosecutions related to abortion, contraception, or gender-affirming care and prohibits California-based corporations, including social media and tech companies, from disclosing to law enforcement any private communication of patients regarding health care that is legally protected in the state.

​​Notably, a “California Healing Arts Board,” including the Medical Board of California and California Board of Registered Nursing, is prohibited from taking disciplinary action or denying an application based on the provision of the protected care under SB 345. For example, a California-licensed doctor can have a telehealth visit with a patient located in Tennessee and prescribe mifepristone as a result of that visit, even if the provider is not licensed to practice medicine in Tennessee. While the Board of Medical Examiners in Tennessee may take disciplinary action against the doctor for practicing in their state without a license, under the law, the Medical Board of California cannot take reciprocal adverse action on the license. In addition to board policies, providers and their lawyers must review state laws impacting the practice of medicine without a license.

The protections afforded under this law are novel and untested by the courts. Providers and health care professionals interested in providing care in states with restrictive laws must review their risks with an attorney before taking further action. Notably, only 14 states and the District of Columbia are free of civil or criminal penalties for abortion providers at all stages of pregnancy.^[1]

Understanding the Types of Services Covered by SB 345

SB 345 protects “reproductive health care services” and “gender-affirming care services,” which are broadly defined within the statute.

This includes all services, care, or products related to reproductive health, ranging from surgical care, dispensing, and even just supportive care. Specifically, the definition includes in-person and telehealth services related to pregnancy, the termination of a pregnancy, assisted reproduction, or contraception. Additionally, gender-affirming care services are broadly defined to mean medically necessary health care that respects the gender identity of the patient, as experienced and defined by the patient.

Notably, protections do not extend to any activity or care that is deemed unprofessional conduct or that would violate the antidiscrimination laws of California.

SB 345’s protections should apply in the following scenarios:

1. Where a California licensed provider offers care to a patient who travels from a banned state to California for essential reproductive and/or gender-affirming health care and returns home after receiving care.
2. Where a California-licensed pharmacist dispenses mifepristone to a patient in a state with abortion-restrictive laws.
3. Where a California abortion fund donates money to an out-of-state patient to receive abortion care.
4. Where an individual in California helps an out-of-state person travel, or with childcare, in furtherance of them receiving abortion care.
5. Where a California-licensed provider offers telemedicine for medication abortion to an out-of-state patient.
   1. Significantly, the provider may be located outside of California at the time of care, and SB 345 can protect that provider once they are physically back in California so long as they are not violating the laws of the state they are located in at the time of care.

How California Residents May Benefit from SB 345

SB 345 supports continuity of care for a vulnerable patient population temporarily located across state borders. California residents often relocate for vacation, school, employment, and other personal reasons. Laws that protect California telehealth providers for gender-affirming care and reproductive health care services are particularly crucial for the over 40,000 students of reproductive age who travel for college.^[2]

Arizona and Idaho are two of the most popular states for California students to relocate to for college.^[3] These states have significant abortion restrictions and a total ban respectively.^[4] Arizona, Idaho, and 12 other states have also passed laws restricting or prohibiting gender-affirming care for people under the legal age of the majority.^[5] Anti-abortion states are also introducing increasingly popular bills that limit access to emergency contraception and contraception. Some scenarios that SB 345 can protect against:

• A Californian receiving hormone treatments temporarily relocates to care for an aging parent or to do an internship^[6]
• A California student attending a college out-of-state arranges a telehealth visit with her local OBGYN to get a medication abortion, emergency contraception, or oral contraception^[7]
• A California minor staying with a parent for the summer becomes pregnant and cannot access care locally
• A Californian suffers early pregnancy loss while traveling and needs medication treatment unavailable in states with abortion bans
• An Idaho resident travels to California for medication abortion, experiences continued heavy bleeding upon return to Idaho, and needs to be prescribed more misoprostol

How Out-of-State Patients May Benefit from SB 345

SB 345 focuses on protections for those who assist in the provision of care. The law does not provide direct legal protection for abortion seekers in states where abortion is banned or criminalized. People who choose to self-manage their abortion may be at criminal risk for their pregnancy outcomes.^[8]

The law may, however, benefit abortion seekers and those who need medical attention for miscarriage management in four distinct ways:

• Enabling abortion-seekers to have direct contact with licensed medical clinicians offering affordable and trustworthy medications promptly
• Protecting patient data from being shared in any criminal or civil investigations brought by anti-abortion officials or individuals in abortion-hostile states
• Opening up alternative options to receive care through telemedicine, thereby significantly reducing costs, stigma, and the burden of travel
  • There are at least ten publicly known virtual clinics offering telehealth for medication abortion by California licensed providers. This includes wisp, Hey Jane, Choices on Demand, Choix, and more. If these providers, and others, choose to utilize SB 345’s protections, these virtual clinics may extend services to underserved communities that currently have little or no legal abortion access.
• Providing protections for pharmacies dispensing medication abortion nationwide
  • California is one of the few states with a pharmacy dispensing abortion medication at a national scale. Currently, individual providers utilize their state shield laws to send medication to states with abortion restrictions. While this is within the scope of most doctor’s licenses in the five other states with interstate telehealth for medication abortion shields, doctors are spending time and money to prepare and package medication independently in addition to providing patient care. If a California pharmacy begins dispensing medication for abortion under SB 345, this provider burden can be alleviated and care may be scalable.

Comparing “Shield Law” Protections Nationwide

As of September 2023, 21 states and D.C. have some state-based protections for providers offering abortion care to out-of-state patients. This includes states whose protections are done via executive order, such as Arizona, and the 15 states that have legalized these protections with shield laws. Seven of these shield law states also extend protections to gender-affirming care. So far, six states--New York, Massachusetts, Colorado, Vermont, Washington, and now California--include telehealth for out-of-state patients in their shield law protections.^[9] We anticipate that more states will continue to pass broader and more protective laws in the upcoming months.

SB 347 is Part of California’s Continued Commitment to Essential Health Care Services

Other bills signed Wednesday include SB 487, which adds safeguards for abortion providers who participate in the Medi-Cal program; AB 1707, which shields health care providers from licensing actions initiated by states hostile to abortion or gender-affirming care; AB 254 and AB 352, which further strengthen medical records privacy for abortion and gender-affirming care; AB 1720, which requires ultrasounds to be conducted in licensed facilities; AB 1646 and SB 385, which are aimed at increasing the reproductive health care workforce, and A.B. 571 which ensures California providers have access to professional liability insurance without facing discrimination based on being a provider of abortion or gender-affirming care services. This is critical, as unreasonable insurance hikes oftentimes significantly hinder providers' ability to offer telehealth for medication abortion care.

These efforts bolster a package of California laws passed in 2022 and build upon Governor Newsom’s June 2022 Executive Order N-12-22, which, among other things, extends privacy and extradition protections to abortion care providers. Governor Newsom will likely issue an updated Executive Order to match the breadth of protections covered in SB 345, including gender-affirming health care and reproductive health care, beyond just abortion services.

Natalie Birnbaum is a healthcare regulatory counsel at Nelson Hardiman LLP and the owner of the reproductive health, rights, and justice policy consulting firm, Repro Solutions PLLC.

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• Reproductive Health Law Hub