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Vermont bill S.28 draws warnings on speech rules and telemedicine abortion prescriptions
Summary
Witnesses at the Senate Health & Welfare Committee hearing urged changes to S.28, which would amend Act 15 to regulate advertising about health care as commercial speech and create a telemedicine prescribing exception for abortion medications that critics say could lower standards and raise First Amendment risks.
Sharon Toborg, a policy analyst for the Vermont Right to Life Committee, told the Senate Health & Welfare Committee that S.28 — a bill to amend language adopted in Act 15 — contains provisions that would chill protected speech and create constitutionally vulnerable regulatory categories.
"It defines all advertising about health care services or proposed service in Vermont as commercial speech, even if there's no economic motive underlying the speech," Toborg said, arguing that the provision would sweep far beyond typical commercial advertising and could be used to penalize organizations and individuals who discuss health care options. She noted a pending federal lawsuit brought in July 2023 by the National Institute for Life Advocates and two Vermont pregnancy resource centers challenging parts of Act 15.
The bill would also add language to unprofessional-conduct statutes and create a telemedicine exception that allows certain prescriptions that terminate pregnancy to be issued based on an online questionnaire alone. David Herlihy, executive director of the Vermont Board of Medical Practice, said the board opposes that carve-out.
"Allowing a patient to obtain a prescription by only answering an online questionnaire with no exchange with the prescriber deters communication," Herlihy told the committee. He said the board's long-standing position and policy on telemedicine require some form of iterative communication between prescriber and patient to support quality care.
Other witnesses urged protecting diverse clinical viewpoints and warned about delegating determinations of what is "confusing or misleading" to an enforcement authority. A clinical nutritionist testifying for herself said science evolves and argued that the bill's wording in Section 13 54 on unprofessional conduct could chill legitimate differences in clinical judgment.
Committee members and one bill sponsor said they expect to propose language changes; committee staff requested written testimony. No formal votes or amendments were recorded during the hearing.
Why it matters: S.28 addresses regulatory language adopted in Act 15 less than two years ago and touches on free-speech issues, professional-practice standards, and telemedicine prescribing rules. Witnesses told the committee that, as drafted, the bill may invite litigation, reduce patient–clinician communication, and create inconsistent standards across types of health care providers.
Background and details: Act 15 included provisions specifically targeting pregnancy resource centers for regulation because those centers do not provide or refer for abortions, witnesses said. Toborg urged repeal of the statute referenced in testimony as "section 2493," saying courts require a stricter test to categorize speech as commercial and that the bill's language presently fails that test. She also warned about enforcement risks if the attorney general were empowered to levy fines on organizations for disseminating material the office deems misleading; witnesses cited a $10,000 fine referenced in the hearing.
Herlihy outlined the Board of Medical Practice's composition and concerns: he said the board has 17 members appointed by the governor, including health professionals and public members, and that the board investigates several hundred cases a year. He read the board's motion opposing a statutory carve-out that would allow prescriptions terminating pregnancy to be issued on questionnaire-only telemedicine encounters, saying such a change conflicts with the bill's stated findings promoting shared decision-making.
Witnesses asked the committee to clarify or remove the telemedicine carve-out, to narrow any advertising restrictions so they target conventional commercial advertising only, and to specify who would have enforcement authority and standards for determining misleading information.
What comes next: Committee members said they will circulate revised language and requested written testimony from witnesses; no formal committee action was taken at this session.
