MASSACHUSETTS MAY HAVE been the first state to pass a sweeping shield law protecting patients and providers of reproductive and gender-affirming care across state lines, but the national landscape has shifted in three years and advocates are anxiously asking lawmakers to close gaps in the legislation. 

“There’s so much fear,” Polly Crozier, a senior staff attorney at GLBTQ Legal Advocates & Defenders, told the Senate Committee on Steering and Policy on Wednesday. “And of course no law’s a silver bullet … but since the January 20 gender ideology executive order, it feels like the world for transgender people has completely changed, and that really impacts their providers as well.” 

The committee is gathering information that may inform legislation that would update and strengthen a 2022 law passed after the US Supreme Court struck down Roe v. Wade.  

Under the law, Massachusetts defines reproductive care and gender-affirming care as legally protected health care and bars officials from cooperating with another state’s investigation or prosecution of its providers. Thousands have received Massachusetts-based care since Roe was overturned and the shield law passed, according to the state attorney general’s office. 

Including Massachusetts, 18 states and Washington, DC have passed abortion shield laws, with six including protections for telehealth providers who prescribe medication to patients in other states that may criminalize the practice.  

Bills pending on Beacon Hill look to update the existing law, including a bill filed by Sen. Cindy Friedman, who oversaw Wednesday’s hearing, and another focused on data privacy refiled by Rep. Kate Lipper-Garabedian and Rep. David Vieira.  

Those before the committee pointed to several loopholes in the current law that they argued need to be addressed.  

Allyson Slater, director of the reproductive justice unit in Attorney General Andrea Campbell’s office, said the AG is hoping for several updates including: an extension of a ban on sharing protected health care data giving her office the explicit authority to enforce the shield law; increased protection of this sensitive health data; that all medical professionals in these specialties including midwives and attorneys be protected; and that the state ensures that Massachusetts courts do not recognize out of state findings of child abuse leveled against parents who allow their children to receive gender-affirming care. 

Providers have been nervously watching developments like the indictment of a New York physician for shipping abortion medications to a woman in Louisiana. The attorney general’s office said it was not aware of current efforts to enforce laws about children transitioning against Massachusetts practitioners. 

The modern system of electronic medical records – acknowledged by speakers and lawmakers as essential and long sought – now carries risks to patients and providers.  

“Medical records that I use to document my care are almost certainly visible to someone in another state,” said Dr Chloe Zera, a maternal-fetal medicine specialist affiliated with Beth Israel Deaconess. Providers “face real and growing threats for doing our jobs. Anti-abortion states are attempting to criminalize care that is fully legal here in the Commonwealth of Massachusetts.” 

Prescriptions for mifepristone and misoprostol – medications used together to terminate an early pregnancy – can be seen by anyone with access to medication orders and dispensing histories, she said. Other states have been able to access the data of interstate patients, Zera said. A college student who received abortion medication in Massachusetts would have that on their medical record in Texas if they returned home, for instance. 

Advocates asked that the law be amended to require specific consent from patients to allow access to sensitive reproductive care and gender care data, along with provisions that certain data be kept out of prescription monitoring programs that could be accessed by the federal government and officials in other states.  

Prescription drug monitoring programs are in place in almost every US state, established to prevent the abuse of prescription drugs, notably opioids, noted Gavi Wolfe, the legislative director at the American Civil Liberties Union of Massachusetts. “There is no reason that medications related to reproductive health and gender-affirming care need to be included in its vast database and vulnerable to prying eyes,” Wolfe said. 

Texas Attorney General Ken Paxton is suing doctors for prescribing gender-affirming care to minors, Wolfe noted, uncovered by accessing the state’s drug monitoring program. 

The ACLU supported New Hampshire when it challenged a federal Drug Enforcement Administration subpoena for two years of a patient’s medical record through the state monitoring program, without a warrant as required by state law. The First Circuit Court of Appeals ruled against the state in 2022.  

Wolfe urged legislators on Wednesday to extend the shield law’s ban on law enforcement from sharing protected medical information. It should also apply to other government bodies like the Department of Public Health, he said.  

“We should ensure that when patients and providers interact with any state actors, not just law enforcement, they can trust that their information will not be voluntarily shared with hostile out of state entities,” he said. 

Some of the updates under consideration could have unintended consequences, senators observed.  

State Sen. Jo Comerford of Northampton asked Slater, from the AG’s office, if the office is “anticipating unintended consequences” to the changes. Specifically, Comerford worried that hiding access to health care information could create barriers around access to care or stymie health equity initiatives. 

“Should we be mindful of any of those or ways to structure the health care information protection so we don’t inadvertently block it off from people we want to see it granted to?” she asked. 

Slater’s response was a familiar refrain on Wednesday: The stakes are high, and the risks are already being seen in other states.  

“We are constantly trying to understand what the unintended consequences could be on the restriction of health care data,” she said. They are looking at models in states like California on data access restriction, she said, but “addressing the immediate harm is the hope of our office.”