More On Telehealth Care

On Monday I wrote about Texas attacking telehealth, another article just came out about the case and what it could do to everyone in the Republican zeal to punish us. (Make no doubt that the lawsuit on abortion healthcare will also affect trans healthcare.)

Telehealth helps people get health care, but access may soon be in limbo

Virtual doctor visits have been a game changer for improving access, especially in rural areas

Science News

By Sophie Hartley and Andrea Tamayo

December 20, 2024

In some parts of the rural United States, accessing in-person health care can feel impossible. Local emergency rooms and specialists might be nonexistent, and a trip to the clinic can take hours.

Telehealth has changed the game. Stephen Martin, a family physician and addiction medicine specialist, has witnessed how the recent influx of virtual appointments has increased access to medical care for rural patients from his practice in Barre, Mass. People seeking long-term addiction treatment who may have shied away from health care in the past because of stigma in a small town or lack of transportation can now receive substantive treatment.

But no one knows how long telehealth will remain a viable option for many people on Medicare. Policies introduced during the COVID-19 pandemic made it easier for people in rural America to access virtual care, but some of these programs are now set to expire early next year.

[...]

“Telemedicine is critical for access,” Seaman says. Finding a primary care doctor, a specialist to help manage chronic conditions, and a mental health practitioner might be a tall order in some rural counties.

The Texas's lawsuit may have a chilling affect on all telehealth care! MedTech writes...

A Texas lawsuit could impact the future of telehealth abortion services in the U.S. by blocking access to one of the two drugs in the current medication abortion protocol nationwide—even in states where abortion is still legal.

As the zealots attack abortion and trans healthcare it is going to have a lot wider implications than just us and abortions. In the article Texas sues New York doctor for telemedicine prescription of abortion pills on NBC News reports,

Paxton’s filing said that Carpenter is not licensed to practice medicine in Texas and argued that by conducting telehealth visits in Texas, she was violating a state administrative code requiring that physicians who treat and prescribe patients in the state hold full Texas medical licenses.

MSNBC...

With this lawsuit, we enter uncharted territory. Texas has accused Carpenter of practicing medicine without a license and violating a state law limiting the availability of abortion pills, with civil penalties for the latter starting at $100,000. If Texas’ lawsuit goes forward, it seems likely, Texas will win in its own state courts. A Texas court will have to decide which state’s law applies, given that the physician was based in one state and the patient and the abortion in another. Standard telehealth law tends to focus on the location of the patient. And Texas will argue that it has the right to apply its laws because of where the abortion — the injury in Texas’ view — took place. That means Texas could win a civil judgment against Carpenter even if she never travels to the state.

The real question might be whether New York will enforce a judgment against Carpenter despite what its shield law and state constitution say about reproductive rights. Texas will argue that New York has no choice because of the Full Faith and Credit Clause, which generally requires states to honor valid, final judgments and decisions of other states. But the clause has exceptions. For example, states don’t have to carry out the penal policies of other states — a term that encompasses not just criminal laws but other laws that have the purpose of punishing “an offense against the public justice of the state.” While state courts have rarely applied this exception, Texas’ laws — especially civil penalties on abortion pills — look pretty penal: Their goal is not to help an injured patient but to enforce Texas’ concept of justice. New York courts may simply refuse to honor whatever ruling a Texas court reaches. Would Texas then try to garnish money from accounts in banks with in-state branches? Could Carpenter easily frustrate that ambition by moving her assets to a different bank?

And interesting provision in New York's shield law is,

Further complicating matters is the fact that Carpenter could sue Texas right back under New York’s shield law, which authorizes so-called clawback lawsuits against anyone who brings a suit that counts as “unlawful interference with protected rights.” If she does, the state will argue it has sovereign immunity from any lawsuit that Carpenter brings under the 11th Amendment, which limits when states can be sued in federal court. And Texas will say it definitely has the power to go after Carpenter because she chose to have contact with the state when she mailed pills to patients within its borders.

You know what all this reminds me of? The Fugitive Slave Act of 1850!

Passed on September 18, 1850 by Congress, The Fugitive Slave Act of 1850 was part of the Compromise of 1850. The act required that slaves be returned to their owners, even if they were in a free state. The act also made the federal government responsible for finding, returning, and trying escaped slaves.

It was a question of states rights back then as it is now.

I asked my favorite AI... "How does the lawsuit on abortion telemedince that Texas wants to impose on New York doctor compare to the Fugitive Slave Act of 1850"

Perplexity AI answered:

The Texas lawsuit against New York doctor Margaret Daley Carpenter for providing abortion pills via telehealth bears some striking parallels to the Fugitive Slave Act of 1850, though in a different context:

Extraterritorial Enforcement

1.     Cross-State Reach: Both the Texas lawsuit and the Fugitive Slave Act attempt to extend the reach of one state's laws into other states.
2.     Overriding Local Laws: The Texas lawsuit challenges New York's shield laws, similar to how the Fugitive Slave Act overrode laws in free states that protected fugitive slaves.

Legal Consequences

1.     Severe Penalties: The Texas lawsuit seeks civil penalties of $100,000 per violation, reminiscent of the Fugitive Slave Act's $1,000 fine (a substantial sum in 1850) for those who aided fugitive slaves.
2.     Criminalization: While the Texas lawsuit is civil, it relates to laws that criminalize abortion provision, echoing the Fugitive Slave Act's criminalization of assisting escaped slaves.

Conflict Between State Laws

1.     State Sovereignty: Both cases involve conflicts between states with opposing laws, challenging the boundaries of state authority.
2.     Federal Involvement: The Fugitive Slave Act was federal law, while the Texas lawsuit may prompt calls for federal intervention in telehealth regulation.

Impact on Individual Rights

1.     Restriction of Movement/Access: The Fugitive Slave Act restricted the movement of Black individuals, while the Texas lawsuit aims to restrict access to abortion services across state lines.
2.     Deputizing Citizens: The Fugitive Slave Act allowed for the deputizing of citizens to enforce the law, while Texas' abortion laws encourage citizen enforcement through lawsuits.

Resistance and Controversy

1.     Public Opposition: Both have faced strong opposition in states that disagree with their premises.
2.     Legal Challenges: The Texas lawsuit, like the Fugitive Slave Act before it, is likely to face significant legal challenges and may ultimately be tested in higher courts.

While the contexts are vastly different, both cases represent attempts by one jurisdiction to impose its laws and values on individuals and practitioners in other states, raising complex questions about state sovereignty, individual rights, and the limits of cross-border law enforcement.

As I said this lawsuit from Texas has far, far reaching implications the Fugitive Slave Act was one of causes that lead to the Civil War. I foresee more lawsuits from other states and also lawsuits for trans telehealth care.

What I think will happen is that the courts will impose licensing requirements on telehealth doctors that they must be licensed in the states where they treat patients.