House Judiciary reviews S.28 changes to shield protections for reproductive and gender‑affirming care

Montpelier, Vt. — The House Judiciary Committee on April 16 took an initial, in‑depth look at S.28, "an act relating to access to certain legally protected health care services," a bill that would amend Vermont's existing shield laws governing reproductive and gender‑affirming health care.

"This is S.28, an act relating to access to certain legally protected health care services," said Jen Harvey, legislative counsel, as she outlined the bill and identified four sections the committee would focus on in Judiciary: sections 1, 5, 6 and 13.

The bill would do four things the committee examined: (1) add limited reciprocity so protections for "legally protected health care activity" can attach to actions previously taken in another U.S. jurisdiction if those actions were lawful there (section 1); (2) extend and clarify the statute that directs state actors not to cooperate with certain out‑of‑state and federal investigations (section 5); (3) restrict disclosure of identifiable protected health information for legally protected health care activity in certain out‑of‑state investigatory contexts while preserving enumerated exceptions (section 6); and (4) allow redaction of prescriber and pharmacist names from labels on fulfilled prescriptions for noncontrolled medications and provide narrow immunities for good‑faith redaction efforts (section 13).

Why it matters: supporters and legislative counsel said the changes are meant to close gaps that have appeared since the 2023 "shield" laws were enacted and to reduce the risk that identifiable provider or patient information would be used to pursue civil, administrative or criminal liability in jurisdictions where the underlying care is not protected. Opponents pressed about scope, implementation and whether the state can limit federal or out‑of‑state legal processes.

Legislative counsel explained the reciprocity change in section 1 as a limited extension of Vermont protections to a person who previously "undertook one or more acts or omissions while in another U.S. jurisdiction to aid or encourage" the exercise of rights to reproductive or gender‑affirming health care, provided those acts were lawful in the other jurisdiction. Harvey said the draft language "is providing some reciprocity for providers from states that also have protections for legally protected health care activity if they are in Vermont."

Members asked how reciprocity would interact with telehealth and licensing; Michelle (Legislative Council staff) and Jen Harvey repeatedly noted the bill limits those extensions to acts that were lawful where they occurred and that federal law and judicial orders remain controlling where constitutional or supremacy‑clause conflicts arise.

Tom Zona, chief superior judge, told the committee he was "unaware of any significant impact" on court workload from earlier shield statutes enacted in 2023 and said clarifications in the draft that make state and federal court orders explicit are improvements. Zona cautioned that a state statute cannot bind federal courts or create federal immunity: "that could lead someone to believe that they are immune both state and federal. I don't know that the state has the authority to provide any type of federal immunity."

On data and disclosure, Harvey and others described section 6 as making Vermont law more protective than HIPAA in some contexts. The section would prohibit covered entities and business associates from disclosing identifiable protected health information related to legally protected health care activity to government entities other than Vermont if the speaker has reason to believe the information will be used to investigate or impose liability for the mere act of seeking, providing or facilitating that care. The draft preserves enumerated exceptions, including disclosure with patient authorization, compliance with court orders that meet statutory requirements, disclosures necessary for Vermont Medicaid operations (subject to the proposed noncooperation rules), and disclosures to state licensing or health agencies conducting bona fide investigations of practice in Vermont.

Healthcare and pharmacy groups described the policy intent and implementation concerns. Jessa Barnard, executive director of the Vermont Medical Society, said the society helped support the 2023 shield bills and backs S.28's targeted updates. "We support all of the sections of the bill," Barnard said, adding that the group sought fenceposts to ensure the statute does not protect activity that would be unlawful in Vermont or otherwise fall outside licensure and professional standards.

Lauren Bode, legislative liaison for the Vermont Pharmacists Association, told the committee pharmacists support protecting prescribers and patients but identified operational challenges to implementing section 13's redaction requirement. Bode said pharmacy computer systems and labeling workflows are standardized for patient safety and billing; removing a prescriber or dispenser name from a fulfilled prescription will in many cases require manual redaction of the physical label or other time‑consuming workarounds. For that reason the pharmacy association asked for a narrowly drawn immunity for pharmacists and staff who in good faith comply or attempt to comply with a redaction request, while preserving discipline or liability for gross negligence, recklessness or intentional misconduct.

Committee members raised questions on multiple fronts: whether the bill invites litigation with other states or federal authorities; how courts would treat requests to compel disclosure under the statute; whether immunities can be made narrower (for civil negligence rather than criminal exposure); and how the scope would apply to controlled substances (federal law requires prescriber identification for certain scheduled drugs, and the draft explicitly excludes controlled substances from section 13 redaction).

Judge Zona and legislative counsel repeatedly cautioned that state law cannot override the U.S. Constitution or valid federal statutes, and they flagged two points for members: (1) court orders compelling disclosure remain enforceable, subject to constitutional limits; and (2) the state cannot create federal immunity for actions that are covered by federal law.

What happens next: committee members indicated they would hear additional witnesses (including pharmacists) and consider technical amendments before deciding whether to take a straw poll on the sections under Judiciary jurisdiction. No formal motion or vote on S.28 occurred during the hearing.

Ending note: witnesses and Legislative Council urged the committee to weigh implementation mechanics alongside policy choices: close gaps where possible, while limiting language that could be impractical to implement or that exceeds the state's authority to affect federal processes.