Report on Shield Bill

The following is my report for H.89, an act relating to civil and criminal procedures relating to legally protected health care.

Last spring in its opinion in Dobbs v. Jackson Women’s Health Organization, the Supreme Court overturned Roe v. Wade. This precedent had protected the right to abortion for nearly 50 years.  In Dobbs, the Court left the protection of reproductive rights to individual states. Following the decision, many states are banning or severely restricting access to abortion services.

Under the reasoning of Dobbs, the Court will likely leave protection of other rights, such as gender-affirming health care, to the states. Many states are now prohibiting transgender people from receiving gender-affirming care.

Some states with these bans are likely to try to use their own laws to stop such care from happening beyond their borders. When their residents receive reproductive or gender-affirming care from Vermont-licensed providers, these states may try to hold the Vermont providers criminally or civilly liable.

Banning or restricting reproductive and gender-affirming health care is contrary to Vermont’s public policy.

Vermonters understood the threat that the U.S. Supreme Court posed to reproductive liberty and wisely started work on protecting these rights over four years ago. That work culminated this past November in voters overwhelmingly approving a constitutional amendment protecting reproductive rights and bodily autonomy.

The Vermont legislature has also recognized the right to gender-affirming health care. In a resolution last year, the Vermont legislature condemned the actions of states that ban best practice medical care for transgender youth.  We committed to exploring all available options to ensure that transgender youth and their families are safe in Vermont to make the best decisions for themselves in consultation with their health care providers.

With the introduction of H.89, the House is now poised to take the next step in protecting access to reproductive health care as well as gender-affirming health care. H.89 would create a so-called Shield Law to protect Vermont doctors, nurses, therapists, and others who are providing reproductive or gender-affirming health care that is legal here in Vermont. The law would protect patients and those who help them obtain this health care if the patient and those who help them are located in Vermont when they receive the service. H.89 would offer some protection to patients who are not located in Vermont when they obtain this health care from a Vermont provider, as well as those who help such patients obtain care.

H.89 would check the overreach by other states. It would reduce legal risks for providers of health care that is legally protected in Vermont. It would also reduce legal risks for patients and for those who aid, support or encourage patients obtaining such care from a Vermont provider.

The bill would protect Vermont-licensed providers from out of state subpoenas and summons where the action in the other state involves health care that is legally protected in Vermont. It would bar Vermont state agencies and employees from giving information to other states to help with an investigation or proceeding involving legally protected health care. It would prevent extradition of Vermont providers charged with providing legally protected health care when extradition is not required by the Constitution. It would allow people to countersue if someone tries to enforce an out of state judgment related to legally-protected health care. It would protect Vermont providers, patients and clinics from threats and violence. And it would protect the home addresses of patients and providers of legally protected health care.

A separate bill that has been introduced in the Senate, S.37, would ensure that medical professionals do not face punishment from licensing boards for providing legally protected health care here in Vermont. The bill would also protect such providers from facing higher medical malpractice insurance premiums. These two bills would complement each other, collectively providing comprehensive protections for providers and patients.

Now, to the details of H.89.

Section one found on page 63 of today’s calendar adds definitions that will apply throughout all 33 titles of the Vermont statutes.

“Legally-protected health care activity” is defined as including reproductive health care services and gender-affirming health care services. Those services are also defined in the section.

The definition in subdivision 150(b)(2) explains that actions that are otherwise prohibited by Vermont law are not legally protected health care activity. The bill provides that “the protections applicable to ‘legally protected health care’ shall not apply to a lawsuit, judgment, or civil, criminal, or administrative action that is based on conduct for which an action would exist under the laws of this State if the course of conduct that forms the basis for liability had occurred entirely in this State.”  So, for example, if a defendant could be liable in a lawsuit in Vermont for conduct that took place in Vermont, such as malpractice or practicing without a license here in Vermont, H.89 would not protect that defendant against a lawsuit brought in another State for that same conduct.

Under subdivision 150(b)(3), if a clinician is licensed in Vermont and physically present in Vermont when providing legally protected health care services, H.89 would protect that provider from actions in other states wherever the patient is located. As long as the Vermont provider is licensed in Vermont, they do not have to be licensed in the state where the patient is located at the time the services are rendered to receive the protections of the shield law. This provision clarifies that H.89’s protections extend to the provision of telemedicine services involving legally protected health care for patients outside of Vermont. This does change the assumption for telemedicine that the law of the patient’s location applies. But so long as the Vermont-licensed provider is following Vermont law and accepted clinical practices as established by professional organizations and licensing Boards, the law would shield them from liability. 

Rather than proceeding straight through the bill, the best way to understand what this Shield Law would do is to present a scenario and explain how the different provisions would protect a Vermont provider of legally protected health care services.

Assume that a Vermont-licensed clinician in Vermont supports a patient from Texas in obtaining an abortion.  A Texas resident could use a Texas law known as SB-8 to sue the Vermont clinician to obtain a $10,000 bounty. Under H.89, the Vermont clinician would be shielded from that lawsuit.

I’m going to skip around in reviewing H.89 to explain how the bill would protect the Vermont provider.

Beginning with Section 3 starting at the bottom of page 64 of today’s calendar. The Vermont provider will be protected from “abusive litigation” that is brought with the intent of suppressing the provision of health care services that are legal in Vermont. Section 7301 defines abusive litigation as “litigation or other legal action to deter, prevent, sanction, or punish any person engaged in legally protected health care activity.” Subdivisions (1)(A)(i) and (ii) provide further detail. The Texas lawsuit would be considered abusive litigation under these definitions.

Subdivision 7301(1)(B) clarifies that Vermont will consider such litigation to be based on conduct that occurred in Vermont if “any act or omission” forming the basis of the lawsuit occurred or was initiated in Vermont. So, if the Texas patient traveled and received services in Vermont or the Vermont-licensed clinician provided the service to someone in Texas through telehealth, Vermont courts would hold that the conduct occurred in Vermont and will apply Vermont law.

Jumping to section 7304 found on page 67 of today’s calendar. In the Texas case, the Texas plaintiff might seek testimony or documents from the Vermont provider to support their lawsuit. Section 7304 provides that a Vermont court will not honor such a request. Subsection 7304(a) provides that a court shall not order a person in Vermont to give testimony or produce documents in the other state’s proceeding where that proceeding is considered abusive litigation under Vermont law.

When a Vermont court receives a subpoena request from another state, it may not be immediately clear that the subpoena is connected to abusive litigation, simply because of the way such requests are filed.  So that court might issue the subpoena. In that case, subsection 7304(b) would allow the Vermont party to quash the subpoena by showing that it was issued in connection with abusive litigation. The Vermont clinician in my scenario, then, would be able to invalidate such a subpoena from a Texas court.

Despite the inability to obtain testimony or documents from the Vermont clinician, the Texas court could still proceed with the case without the cooperation or appearance of the clinician. It could also issue what is called a default judgment against the clinician. But under H.89, that is not the end of the story.

So, we turn to section 7302 on page 65 of today’s calendar.  Under this section, the Vermont clinician can bring a lawsuit in Vermont at this point against the Texas plaintiff, for interfering with legally protected health care. This section establishes a new cause of action for “tortious interference with legally-protected health care activity.” Subsections 7302(b) and (c) provide further details regarding what the tortious interference case would address. Subsection 7302(d) explains the relief available to the person, in my scenario the Vermont clinician, including damages that could include the amount of the Texas judgment against the Vermont clinician, plus costs and attorneys’ fees.

Subsection 7302(e) explains when a Vermont court can exercise jurisdiction over the party who brought the abusive litigation in the other state – here, the plaintiff in the Texas case.

Turning to section 7303 page on the bottom of page 66 of today’s calendar.  Whether or not a tortious interference claim is brought and whether or not it was successful, the plaintiff in the other state can still try to enforce its judgment in Vermont. In my scenario, the Texas plaintiff could seek to enforce their judgment in a Vermont court. The Vermont court can enforce the judgment, but only if the Texas court (1) had jurisdiction over the Vermont clinician and (2) provided the clinician with due process.  The standards for showing jurisdiction can be complicated. In short, jurisdiction probably could be established if the Vermont clinician had certain contacts with Texas, such as having an office or practice there. Due process is also complicated. At a minimum, the Vermont clinician would have to have been given notice and an opportunity to be heard in the Texas case.

In addition, the Vermont court could decline to give effect to the Texas judgment if it finds that the judgment is penal in nature. Whether it is penal in nature is also a complicated issue. If it is clear that the civil judgment is not intended to compensate the plaintiff but is instead to punish, deter, or sanction the Vermont clinician, a Vermont court could very well find the judgment to be penal and would therefore not give it effect.  These are issues that future lawsuits will likely clarify.

Turning your attention to subsection 7303(b) on the top of page 67 of today’s calendar. This provides for a five-year statute of limitations for the enforcement of judgments from another state (referred to as “foreign judgments”) where those judgments are issued in connection with abusive litigation involving legally protected health care. A five-year statute of limitations is in line with what other states impose for the enforcement of foreign judgments. In our Texas scenario, the Texas plaintiff would have to seek enforcement in a Vermont court within five years of receiving their judgment in Texas.

Before I discuss one other provision of H.89 in the context of the scenario that I laid out, I’m going to address a few other provisions that are in section 4 of the bill.

Subsection 7302(f) on page 66 of today’s calendar provides that the tortious interference cause of action may not be brought if the other state’s lawsuit or judgment is based on conduct for which there is a right to sue in Vermont, including any contract, tort, common law, or statutory claims. In other words, if the lawsuit could have been brought under Vermont law, a tortious interference claim would be disallowed.

Subsection 7302(g) excludes the attorney representing the out-of-state party from liability under the tortious interference cause of action.

Section 7305 on page 67 of today’s calendar clarifies that Vermont law will apply in any case in Vermont involving legally protected health care.

Section 7306 bars certain entities from cooperating with those in other states who are investigating or proceeding against Vermont’s legally protected health care services. No Vermont public agency or employee may knowingly provide information or use resources to help with an interstate investigation or proceeding that seeks to impose civil or criminal liability on someone in Vermont based on legally protected health care services. Subsection 7306(b) provides certain exceptions to this prohibition.

Now let’s back up to Section 2 of H.89, which is found on page 64 of today’s calendar.  This section prevents the misuse of Vermont’s anti-SLAPP statute. The term “SLAPP” is an acronym for Strategic Lawsuit Against Public Participation. Vermont’s anti-SLAPP statute allows a defendant to avoid liability in actions “arising from the defendant’s exercise, in connection with a public issue, of the right to freedom of speech or to petition the government for redress of grievances.” Section 2 would bar a defendant faced with the tortious interference claim from relying on the Vermont anti-SLAPP statute. The court would not consider the tortious interference claim as suppressing freedom of speech or the right to petition.

To illustrate, let’s go back to my scenario.  Assume an individual in Texas obtains a judgment in Texas against a Vermont provider who has helped a Texas resident receive an abortion. The Vermont provider files a case alleging tortious interference with legally-protected health care activity – the cause of action created in section 3 of the bill.  Without the exception in H.89, the Texas defendant could seek to end the tortious interference case through use of Vermont’s anti-SLAPP statute. The defendant could claim that the Vermont tortious interference case impinged on their rights to free speech. But section 2 of H.89 amending the anti-SLAPP statute would foreclose this attempt.

Having covered Section 3 of the bill, I will next move to Section 4, which begins on page 68 of today’s calendar. The provision prohibits interference with access to a health care facility. It is modeled after a federal law called the Freedom of Access to Clinic Entrances, a law that has been upheld by federal courts. The federal law imposes a criminal penalty, but H.89 imposes a civil fine.

Subsection 1033(a) provides findings, explaining that “all persons must be able to access health care facilities for the purpose of obtaining legally protected health care activity.”  This right is to be balanced against the right to protest those procedures, but willful obstruction should be prevented.

Subsection 1033(b) provides relevant definitions, including what is meant by “health care facilities” and what is a “physical obstruction.”

Subdivision 1033(c)(1) prohibits anyone from using force or threat of force to knowingly injure, intimidate, or interfere with a person’s access to legally protected health care, or attempting to do so.

Subdivision 1033(c)(2) prohibits anyone from knowingly damaging the property of a health care facility that provides legally protected health care.

I will note that these prohibited activities can also result in criminal liability under provisions of our existing criminal code including those related to trespassing or disorderly conduct.  This provision provides a civil fine to provide another option for addressing such interference.  Subsection 1033(d) provides a $300 civil penalty.

Subsection 1033(e) clarifies that this section does not prohibit conduct or expression that is constitutionally protected.

Section 5 on page 69 amends 4 VSA 1102 to state that the Judicial Bureau has jurisdiction over violations relating to interference with access to health care facilities.

The next two sections address situations when another state has brought a criminal case against a Vermont provider of legally protected health care activity.

To provide context, I will explain another scenario.  Alabama law provides that anyone who engages in or causes a transgender minor to receive gender-affirming care faces a felony punishable by up to 10 years in prison or a fine up to $15,000. Assume that a Vermont-licensed therapist located in Vermont provides services related to gender-affirming care via telehealth to an Alabama family. An Alabama District Attorney seeks to prosecute the therapist and the minor’s parents. The DA seeks to have the therapist extradited to Alabama to face charges.

Under Vermont’s current extradition law, if the Vermont-licensed therapist had provided services while located in Alabama and then traveled back to Vermont, the therapist would be considered a fugitive and Vermont would have no choice but to extradite the therapist. However, because the therapist in this scenario was located in Vermont when providing the services, extraditing the therapist under current law would be discretionary.

Section 6 located on page 69 of today’s calendar amends Vermont’s extradition law to take away that discretion. If the therapist was in Vermont when providing the legally protected health care, section 4970 would prevent the person’s extradition.

Moving to Section 7. This section amends the Uniform Act to Secure the Attendance of Witnesses from Without the State in Criminal Cases.  If the Alabama DA seeks to secure the attendance of the therapist in Alabama as a witness for the prosecution of the minor’s parents, section 6650 would prevent that from occurring.

Subsection 6650(a) restates Vermont’s public policy against interference with legally protected health care activity.  Subsection 6650(b) provides that a court shall not issue a summons requiring a witness to appear in another state if the action in the other state involves legally protected health care.  So, the Vermont court would not honor the Alabama summons.  The court would, however, have to honor the summons if the criminal violation being prosecuted in that state is also a crime in Vermont.

Section 8 of H.89 starts on page 70 of today’s calendar.  This section amends 15 VSA chapter 21, which currently protects the confidentiality of the addresses of victims of domestic violence, sexual assault or stalking.  Section 8 amends chapter 21 so that these protections are extended to a person providing, assisting another person in obtaining, or obtaining for themselves reproductive health care services or gender-affirming health care services in Vermont.

Subdivision 1150(a)(2) finds that such individuals may be harassed, intimidated or threatened because of their legally protected health care activity. Subsection 1150(b) explains that the address confidentiality program allows state and local agencies to respond to requests for public records without disclosing the location of protected persons.

Section 1151 provides definitions, adding cross references to the definitions of gender-affirming health care services and reproductive health care services.

Section 1152 sets forth the application process for inclusion in the confidentiality program. Subdivision 1152(a)(1)(A)(ii) adds persons providing, assisting with, or obtaining reproductive or gender-affirming health care services in Vermont.

Section 8 also includes variety of requested non-substantive edits to clean up the language of this chapter.

Section 9 provides the effective dates of the bill.  Sections 1 to 7 take effect on passage. Section 8 – the confidentiality provision – takes effect on September 1, 2023.

In my review of H.89 to this point, I have focused on the protections for those in Vermont, particularly for those who provide legally protected health care services. These protections extend to doctors, clinicians, and nurses. They also cover insurers, Vermont patients, or anyone else in Vermont helping or engaging in a patient’s access to such services – people who could be in the cross hairs of another state’s legal action aimed at deterring, preventing, sanctioning, or punishing anyone who is engaged in legally-protected health care activity.

Protections in H.89 are also provided to out-of-state patients. We are not able to prevent another state from taking action against a patient in that state or against someone in that state who helps a patient receive reproductive or gender-affirming health care services.  But we do not have to cooperate with the other state in its efforts. Under the shield provided by H.89, Vermont courts and agencies would decline to provide witness testimony, statements, or documentation that could further the other state’s case against a patient or anyone who assisted them.

As I come to the end of this report, I will provide another example of how the shield law would protect Vermonters. Vermont youth may attend college or summer camps in states that ban or restrict reproductive or gender-affirming health care. That Vermonter may access reproductive health care in that other state from a Vermont provider or continue to work by telehealth with their Vermont therapist on topics considered gender-affirming health care. The shield law would protect this doctor-patient relationship in the manners I have described. 

The provisions in the H.89 shield law and similar shield laws in other states will raise new and interesting legal questions. Having said that, we have heard from several legal experts including a law professor, Vermont’s Solicitor General in the Attorney General’s office, the chief of the criminal division of the Attorney General’s office, the ACLU, other attorneys, and legislative counsel, who all have said that under current law H.89 is constitutional.

Before I list our witnesses, I will highlight some of what H.89 does NOT do. It does not change Vermont’s statutes or the medical community’s guidelines related to reproductive or gender-affirming health care. It does not change the standards of care or how the standards of care are determined. It does NOT affect existing statutes or guidelines regarding a minor’s ability to consent to such care.

Vermont cannot change the fact that many states have made abortion and gender-affirming care illegal. We cannot change the fact that many states have restricted or denied access to such health care.  But what we can do with this bill is protect Vermont-licensed healthcare providers and people who obtain or help others obtain reproductive or gender-affirming health care from Vermont providers from the very real threat that other states pose.

The committee vote was 9-1-1 and we ask for your support.