Questions are mounting about the constitutionality of a bill awaiting Gov. Kathy Hochul's signature that aims to legally protect New York medical providers using telemedicine to prescribe abortion medication to out-of-state patients.

Democrats in the state Assembly passed legislation during this week's two-day special session they say will protect New York abortion providers from litigation if they use telemedicine to treat people outside the state seeking abortion care or medication, which might be restricted or prohibited where they live. 

During floor debate Tuesday, a few Republicans questioned how the state could protect a medical provider from litigation if they provide abortion care to someone in a state where it's against the law.

"This bill is astounding beause it says a New Yorker using telehealth can violate another state's criminal laws and do so with impunity, and that's wrong," said Assemblyman Andy Goodell, a Republican from Jamestown.

Goodell argued New York often bans things that remain legal in other states, but officials expect other states to respect their decision.

"It is an unconstitutional attempt to allow New York physicians to knowingly and intentionaly violate the law in other states with impunity," he added. "That's bad public policy, regardless of how you feel on the abortion issue and we should not embrace it."

Assembly sponsor Karines Reyes, a Bronx Democrat, argued the measure could not handcuff other states from legally prosecuting a physician who commits a crime or is negligent.

But she defended the bill, saying abortion is a health-protected activity in New York, and providers will not be committing a crime by using telemedicine to provide those services in other states. 

"We are just affirming in New York state we protect a physician's right to perform legally protected health activities," she said. "And in that case, it means including providing services to women in other states who may not have options because they were taken away from them."

But legal experts have their doubts.

Vin Bonventre, Justice Robert Jackson distinguished professor of law at Albany Law School, says the legislation could violate the Full Faith and Credit Clause in the U.S. Constitution, which mandates state courts respect the laws and court decisions in other states.

"There's absolutely no doubt in my mind — this is going to be challenged under federal constitutional law," Bonventre said Wednesday. "And it's going to be challenged in the law, under the law and in the courts of those states that have severe abortion restrictions."

Upper Hudson Planned Parenthood health centers serve about 16,000 patients per year, with 20% of people coming from outside its service area and other states.

But they do not offer telehealth care to service out-of-state patients.

"If I'm a doctor sitting here in Albany, I currently can't provide telehealth services to somebody sitting in Florida, regardless of the political atmosphere, regardless of the service I'm providing," said Chelly Hegan, Upper Hudson Planned Parenthood's president and CEO.

Hegan says providers have questions about what the legislation will do, but that it demonstrates state officials' committment to protect abortion care for anyone amid emerging legal challenges.

Advocates focused on helping women who live in states restricting abortion access praised the legislation's passage.

"...For more than two decades medication abortion has provided a safe, effective method for women, girls and pregnant people to have the freedom to make their own reproductive health decisions," said Dr. Linda Prine, Abortion Coalition for Telemedicine Access executive director. "It now accounts for more than  50% of all abortions in the U.S.  With the passage of this patient and provider-focused bill, New York will continue playing a leading role in helping shield providers and close the accessibility gap for patients who are denied their human right to access essential health care in abortion-hostile states."

Saturday marks the one-year anniversary since the U.S. Supreme Court's decision in Dobbs v. Jackson Women's Health Organization to overturn Roe v. Wade. Planned Parenthood clinics in states like Colorado, Illinois and North Carolina have seen a 700% increase in patients because they border states that have limited abortion access since the decision, Hegan said.

"We certainly don't need more abortion access," said Emily Cappello, operations manager of Feminists Choosing Life of New York. "Instead, women need life-affirming resources, including affordable accessible child care, better paid parental leave, prenatal child support [and] expanded child tax credits. Because if there's no options, there can't be a choice."

Hegan said regardless if New York's bill becomes law, or future legal challenges, the state Legislature acted on its duty to protect abortion providers and their patients, regardless of where they're from.

"Not only the patients who come here, but the providers who provide care," she said. "Because without them, without access, there is no freedom."