by Alison Despathy

Meet Senate Bill 28, a healthcare freedom of speech muzzle bill. Defined as ‘access to certain legally protected health care services,’ S.28 has constitutionally-questionable First Amendment infringements and an impossible claim to hold ‘truth’ and to judge and punish those who offer another path

So much for diversity of thought and choices, this is 1984 playbook material. It seems the Senate Health Ministry of Truth strikes again and is attempting to squash healthcare options, differing perspectives and quality of care with S.28.

Background

In 2023, the Vermont Legislature passed Act 15, a law also relating to access to certain legally protected health care services. Act 15 specifically sought to stifle the speech of pro-life pregnancy centers and attack these entities for advertising and offering services to support pregnant women.

Soon after enactment, a lawsuit was brought forth by a coalition of pregnancy services centers for First Amendment free speech violations. Senior Judge of the United States District Court for the District of Vermont William Kenneth Sessions III denied a motion to dismiss by the State of Vermont which offered the plaintiffs standing to move their lawsuit forward on the basis of free speech infringements. After this declaration by Judge Sessions, the lawsuit was stayed and is still currently on hold.

Meanwhile with this knowledge in hand, several Senators including Senator Ruth Hardy and Senate Health and Welfare Committee Chair Virginia Lyons, sponsored S.28 which moved to amend the language but not the intent of Act 15. S.28 has taken potential free speech infringements and broadened them out to include all persons, instead of solely targeting limited services pregnancy centers, specifically stating:

“It is an unfair and deceptive act and practice in commerce and a violation of Section 2453 of this title for any limited-services pregnancy center person to disseminate or cause to be disseminated to the public any advertising about the health care services or proposed services performed at that center in this State that is untrue or clearly designed to mislead the public about the nature of the services provided…”

Consumer protections and preventing fraud in advertising are of utmost importance. Selling snake oil, promising a magic bullet, or abuse and negligence in healthcare services should be investigated and penalized in order to protect consumers and prevent harm. These are basic tenets of ensuring quality care, service, and products.

S.28 attempts to regulate speech under commerce laws. First Amendment free speech infringements are still free speech infringements regardless of how one attempts to impose a muzzle.

Regardless of where someone lands on the abortion issue, most would agree that options are essential. Pregnancy resource centers provide pregnant women with essential services and support if they choose to carry their baby to term. Planned Parenthood should not have a monopoly on pregnant women contemplating their pregnancies and personal, private healthcare decisions.

Sharon Fraser Toburg is a policy analyst at Vermont Right to Life. On February 27, Sharon provided testimony in opposition to S.28 in the Senate Health and Welfare committee. She was interrupted and shut down multiple times by Senator Lyons as she attempted to offer concerns regarding S.28.

In a recent interview, Sharon shared her key testimony message – that she was not able to fully provide because of interference by Chair Lyons – stating, “I wanted to make sure that all committee members were aware that Act 15 had been challenged in Federal District Court on First Amendment grounds and that the proposed changes were also constitutionally questionable. Another point was that S.28 represents the second time that standards of medical practice that should apply to all healthcare providers have been lowered for providers of abortion and so-called gender affirming care.”

Toborg further explained that right now, “There is a lot of controversy around many issues related to healthcare- abortion, gender, COVID response etc. Vermont Right to Life is committed to providing truthful, accurate, information about abortion and its effects on women and will take steps to protect our right to do so.”

Toburg expressed Vermont Right to Life’s concerns that, “S.28 continues Vermont’s prioritization of access to abortion care over women’s health and safety. S.28 allows certain medical providers to prescribe the chemical abortion pill over the internet -without a face-to-face interaction with the patient – based on responses to a survey. This is very concerning as there can be no physical exam to accurately date a pregnancy or rule out an ectopic pregnancy. The abortion pill is only approved for use up to 10 weeks of pregnancy, and the complications of the abortion pill increase the further along in pregnancy it is used. It also facilitates fraud and abuse. There are many cases where men have obtained the abortion pill and given it to unsuspecting women to cause the death of an unborn child.”

It was not just Vermont Right to Life that provided testimony on this reduced quality of care concern in S.28. David Herlihy, Executive Director of the Vermont Board of Medical Practice, also testified in opposition to this aspect of the bill, specifically identifying issues with Section three of the bill,

“One part of Section three would create an exception to existing Vermont law, that says it is not OK if you are practicing by telemedicine to issue a prescription based on only an online questionnaire. This would change that and do away with that requirement.”

The Vermont Medical Board recently passed a Motion stating,

“Section three [of S.28] creates a carve out to the statutory standard for prescribing via telemedicine. The current law is consistent with the Board’s long standing position that it is unacceptable for a prescriber to rely on only a questionnaire when prescribing by telemedicine. The bill proposes to amend the law by adding an exemption that would apply to only prescriptions and drugs to terminate a pregnancy. The Board opposes that provision because Board members believe that prescribing by questionnaire alone with no interaction between the patient and the prescriber does not constitute quality care.”

Herlihy went on to state that “After 30 years of providing testimony at the State House, this is the first time I have ever seen a bill that has such an obvious conflict between the legislative findings made in the bill (to “cultivate an environment where best practices and shared decision making can flourish.”) and something this bill proposes to do (prescribe by questionnaire alone).”

Herlihy then posed a question to the committee, “Do any of you feel that a special exception to the law that prohibits the issuance of a prescription based on only a questionnaire promotes shared decision making or as a result quality care?” No response was offered by committee members.

Toburg also pointed out that S.28 would grant, “Pro-abortion politicians like Attorney General Charity Clark the authority to decide what is ‘misleading’ with regard to pro-life speech and impose $10,000 fines, threatens the ability of women considering abortion to receive complete information. She warned that, “Soon speech critical of abortion will be more heavily regulated than the procedure itself in Vermont.”

This opposing testimony leads one to question if this bill is designed to protect Vermonters and ensure access to high quality care or promote the profit potential and possible monopoly of Planned Pregnancy who are greatly positioned to benefit from this bill at the expense of other pregnancy service centers and quite possibly Vermonters.

Senator Douglas resides on the Senate Health and Welfare Committee. In his recent legislative newsletter, Senator Douglas explained his NO vote for S.28 stating, “From my very first read through on this legislation, I had significant concerns of its constitutionality. I brought up these concerns, but they weren’t addressed. It appears to muzzle citizens and prevent the expression of opinions, even the opinions of licensed doctors. Regulation of “untrue” or “misleading” speech is very subjective, and the bill doesn’t take intent into account. The inclusion of “social media” and “internet” into the regulation of speech adds even more complications. Additionally, I do not believe we should regulate healthcare or speech/opinions about healthcare under commerce. I do not believe that the constitutionality of free speech changes by shifting how it is regulated.”

People need options for care and providers must be able to freely express their opinions and advertise their services.. This echoes back to the enshrined right of informed consent and ensuring that patients are aware of their choices, risks, and have all possible information in hand to make the best informed decisions for themselves. The danger of S.28 lies in its attempt to limit options by imposing free speech infringements and decreased quality care, both of which actually harm people.

S.28 was voted out of committee with a 4-1 vote, Senator Douglas was the dissenting vote because of his above expressed concerns. S.28 moved through the Senate despite these unresolved issues. It now resides in House Healthcare where it awaits to be taken up in committee for discussion.

The author is a clinical nutritionist in St. Johnsbury.