Florida’s health leaders recently warned medical providers against distributing abortion medication after the Food and Drug Administration recently approved the medication's commercial use.
Earlier this month, the FDA approved commercial sales of mifepristone, the first of two drugs in medication abortions, which were typically dispensed only by abortion clinics, doctors or mail orders.
However, Florida pharmacies will not be allowed to carry or sell the drug due to state law stating that patients can only receive abortion medication from clinic physicians after performing two in-person visits.
Last week, the Agency of Health Care Administration sent an email to many, if not all, state medical providers warning if they provide or assist in providing anyone with abortion medication they would face criminal penalties.
The email makes note of two statutes.
“First, section 390.0111(2), Florida Statutes, provides that ‘[n]o termination of pregnancy shall be performed at any time except by a [licensed] physician.’ Second, section 797.03 (1), Florida Statutes, states that ‘[i]t is unlawful for any person to perform or assist in performing an abortion on a person, except in an emergency care situation, other than in a validly licensed hospital or abortion clinic or in a physician’s office.’”
The message says it was intended for "all" providers, which seemed to cover doctors among a variety of specialties. Providers of at least one Central Florida physical therapy clinic also received the letter.
The AHCA did not respond to a request for comment on the email and as to why it cast such a large net among practitioners outside of the field of sexual reproduction and women's health.
Reactions
Orlando-based state Rep. Anna Eskamani tweeted last week about one of her constituents receiving the message and called it "threatening."
"Abortion is incredibly safe and Florida laws that ban and delay abortion care like HB5 are all about control, just like this email," she said.
Elizabeth Nash, a policy analyst at the Guttmacher Institute, said she hasn’t heard other state health officials l take such steps toward providers.
“This is very unusual. And I think speaks to how the governor of Florida and policymakers are looking at trying to further restrict access to abortion care rate,” she said. "You typically don't see this, even around abortion, which is the most heavily regulated medical service in the country. So, this felt very heavy-handed. It is what it is. It's a deterrent, particularly for pharmacies."
The law surrounding abortion has a ban in effect after 15 weeks of gestation.
Violating Florida law
The AHCA wrote that willfully violating Florida’s statutes could result in a second-degree misdemeanor with 60 days in jail, but that violation could also result in the loss of a medical license, said Jay Wolfson, a public health medicine professor at Stetson University College of Law.
“It's a discretionary decision by the Florida Board of Medicine to determine whether or not any action or behavior by a practicing licensed physician rises to a level that constitutes either moral turpitude, or danger to patients or risk to other practitioners,” he said.
The likelihood of losing a license after one offense is low, Wolfson added, but that could change.
"That could always change if the Florida Legislature changes the statutory provisions for licensure in the state of Florida to include such behaviors," he said.
What lies down the road
Wolfson found the language of Florida statute section 797.03 interesting, particularly the use of the word "assist" in performing an abortion, which seems targeted at pharmacists.
“If a pharmacist advertently knowingly dispenses this medication, that would be assisting, if they inadvertently did it, it would be negligent and cause for some action by the board of pharmacy and stand against the pharmacist for negligence,” he said.
Wolfson found the nature of the email unusual but ultimately described it as helpful and offering clarity to providers facing a legal landscape full of upcoming changes.
"I think we're going to see a lot of activity either within the Board of Medicine, or the Board of Nursing and possibly even in the court system around how abortion care and treatment is going to be handled in Florida," he said. "I think it's a timely alert for licensed physicians and other clinicians in the state and for pharmacists, just to be sure that they understand what the rules are."
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