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Abortion shield laws in the United States

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Abortion shield laws in the United States are enacted in states where abortion is legal to protect healthcare practitioners who provide abortion services for patients from states where abortion is illegal. California, Colorado, Maine, Massachusetts, New York, Vermont and Washington have passed laws to also protect telehealth actions when the provider prescribes abortion pills to a patient who is in an antiabortion state.[1]

These shield laws have been enacted after the United States Supreme Court overturned Roe v. Wade with Dobbs in June 2022.[2][3]

States with abortion shield laws

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As of June 2024, abortion shield laws are on the books in DC and 18 states:[4]

  • California
  • Colorado
  • Connecticut
  • Delaware
  • Hawaii
  • Illinois
  • Maine
  • Maryland
  • Massachusetts
  • Minnesota
  • Nevada
  • New Jersey
  • New Mexico
  • New York
  • Oregon
  • Rhode Island
  • Vermont
  • Washington

California

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California has passed a package of 12 bills (which amended several existing statutes) including:[5][6]

  • AB 254 by Assemblymember Rebecca Bauer-Kahan (D-Orinda) – Confidentiality of Medical Information Act: reproductive or sexual health application information.
  • AB 352 by Assemblymember Rebecca Bauer-Kahan (D-Orinda) – Health information.
  • AB 571 by Assemblymember Cottie Petrie-Norris (D–Laguna Beach) – Medical malpractice insurance.
  • AB 1646 by Assemblymember Stephanie Nguyen (D–Elk Grove) – Physicians and surgeons: postgraduate training: guest rotations.
  • AB 1707 by Assemblymember Blanca Pacheco (D–Downey) – Health professionals and facilities: adverse actions based on another state’s law.
  • AB 1720 by Assemblymember Rebecca Bauer-Kahan (D–Orinda) – Clinics: prenatal screening.
  • SB 345 by Senator Nancy Skinner (D-Berkeley) – Health care services: legally protected health care activities.
  • SB 487 by Senator Toni Atkins (D-San Diego) – Abortion: provider protections.

Maine

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Maine has some of the least restrictive abortion laws in the country, and its shield law includes protections for abortion, fertility treatments and contraception.[7]

Massachusetts

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The abortion shield law in Massachusetts protects telehealth abortion providers and gender-affirming care providers from out-of-state prosecution by categorizing all virtual encounters with patients in anti-abortion states as local.[8]

History

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In 2023 a paper was published in the Columbia Law Review about ways in which shield laws could protect medical practitioners providing abortion who treated patients in US states that prohibited abortion.[9] Following publication of the paper, several states passed shield laws for medical practitioners. As of July 2023 fifteen states had such shield laws, and five had telemedicine provisions, specifically protecting a provider who prescribed and mailed abortion pills to a patient in a state where abortion was banned.[10] From 18 June 2023 Aid Access mailed medication to patients throughout the US with providers licensed in the five states with telemedicine provisions, with no need to ship from other countries as had been necessary before. It was expected that legal battles would follow as the shield laws were tested in court. Patients themselves were not protected by the shield laws, and remained subject to prosecution for self-managing abortions.[10]

Starting in 2023, several states passed abortion shield laws. Thereafter, practitioners in those states started to use the telehealth process to screen out-of-state patients, and in some cases, the practitioners prescribed the abortion pill, which was mailed to the patient from out-of-state.[11]

Before the landmark Dobbs v. Jackson Women's Health Organization, telehealth accounted for 4% of abortions in the US, and after Dobbs, the percentage increased to 16%.[12] By December 2023, telehealth accounted for 19% of all abortions in the US.[13] Telehealth accounted for 20% of all abortion care in the first three months of 2024.[14]

From October through December 2023, nearly 8,000 people per month in anti-abortion states were getting abortion medication from clinicians operating in states with shield laws.[15] In 10 anti-abortion states, the number of women receiving abortions increased between 2020 and the end of 2023.[16] Nationally, the first half of 2024 recorded approximately 587,000 abortions, an increase of 12% from the same period in 2023.[16]

In April 2024 a man in Texas invoked the Texas Heartbeat Act to bring legal action against his ex-partner and healthcare providers in Colorado for her abortion there.[17]

In December 2024 Texas sued a New York doctor for allegedly prescribing abortion pills to a 20-year-old Dallas-area woman.[18][19][20] The complaint tests the Texas abortion ban against a 2022 New York shield law.[21][22][23]

[edit]

Shield laws, in general, have complicated legal issues surrounding them, primarily because they deal with interstate relations. There has also been scholarly discussion as whether abortion shield laws—particularly those prohibiting the enforcement of judgements or injunctions (provisions designed to hobble the Texas Heartbeat Act and its progeny) arising from laws limiting abortion access—would withstand constitutional challenges claiming such laws are in violation of the Full Faith and Credit Clause.[24] The following is the text of Article IV, Section, Clause 1, commonly known as the Full Faith and Credit Clause:

Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.

Another source of potential constitutional uncertainty may arise from the Extradition Clause.[25] The text of the Extradition Clause is found in Article IV, Section 2, Clause 2:

A Person charged in any State with Treason, Felony, or other Crime, who shall flee from Justice, and be found in another State, shall on Demand of the executive Authority of the State from which he fled, be delivered up, to be removed to the State having Jurisdiction of the Crime.

Shield law provisions may deny extradition of people who were not in the other state when they allegedly committed the crime. Some abortion shield laws are broad, and apply to all conduct (not just abortion) that is not punishable in the shielding state. Other states have protection that is specific to reproductive health care.[2]

Standard telehealth practice and policy is to consider medical care to have occurred where the patient is located. This means a state with an abortion ban would consider a medical care provider to have broken that state's laws if that provider used telehealth to provide abortion care to a patient located in a state that bans abortion. However, Massachusetts' shield law applies "regardless of the patient's location." This might mean that a Massachusetts provider, licensed and located in Massachusetts, can take advantage of the protections of the state's shield law no matter where the patient receives the care. Currently a one-of-a-kind provision, this provision poses several open questions regarding how it would work in practice.[2]

Executive orders

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Executive orders are issued by governors, and are an alternative to legislation. However, executive orders only apply to administrative acts and procedures under the umbrella of the executive branch, and so they are not as powerful as laws passed by legislatures. As of Feb 2024, governors have issued executive orders in 12 states: California, Colorado, Maine, Massachusetts, Michigan, Minnesota, Nevada, New Mexico, North Carolina, Pennsylvania, Rhode Island, and Washington. These executive orders address topics such as license discipline, extradition, and executive agency cooperation.[2]

See also

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References

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  1. ^ Stein, Shira (June 11, 2024). "The unexpected opponent to telehealth abortion shield laws: Planned Parenthood".
  2. ^ a b c d "Abortion Shield Laws" David S. Cohen et al, March 28, 2023 NEJM Evid 2023;2(4) DOI: 10.1056/EVIDra2200280 VOL. 2 NO. 4 https://evidence.nejm.org/doi/full/10.1056/EVIDra2200280
  3. ^ Gomez, Ivette; Diep, Karen; Felix, Mabel; Salganicoff, Alina (June 20, 2024). "10 Things to Know About Abortion Access Since the Dobbs Decision". KFF.
  4. ^ "Interstate Shield Laws". Center for Reproductive Rights. June 26, 2024.
  5. ^ "Newsom signs abortion protections into law" Kristen Hwang, Cal Matters, 27 Sept 2023, https://calmatters.org/health/2022/09/california-abortion-bills/
  6. ^ "California Expands Access and Protections for Reproductive Health Care" Office of California Governor, 27 Sept 2023 https://www.gov.ca.gov/2023/09/27/california-expands-access-and-protections-for-reproductive-health-care/
  7. ^ Davis, Emma (August 8, 2024). "Maine shield law protecting reproductive, gender-affirming care takes effect Friday". Maine Morning Star.
  8. ^ Piore, Adam (June 21, 2024). "How Massachusetts became the center of resistance to anti-abortion forces". Boston Globe.
  9. ^ Cohen, David S.; Donley, Greer; Rebouché, Rachel (January 2023). "THE NEW ABORTION BATTLEGROUND". Columbia Law Review. 123 (1).
  10. ^ a b Grant, Rebecca (23 July 2023). "Group using 'shield laws' to provide abortion care in states that ban it". The Guardian.
  11. ^ "Abortion Shield Laws: A New War Between the States", Pam Belluck, 28 Feb 2024, New York Times, https://www.nytimes.com/2024/02/22/health/abortion-shield-laws-telemedicine.html
  12. ^ Telehealth abortions on the rise since Dobbs, new report shows Sofia Resnick, New Jersey Monitor, February 28, 2024
  13. ^ Sherman, Carter (14 May 2024). "New laws help people in US states with bans get abortion pills: 'Most people don't know it's available'". The Guardian.
  14. ^ MOSELEY-MORRIS, KELCIE (August 13, 2024). "Telehealth abortion still on the rise, especially in states with shield laws, report shows". Tennessee Lookout.
  15. ^ WEIXEL, Nathaniel (May 20, 2024). "Red state abortion bans headed for clash with blue state shield laws". The Hill.
  16. ^ a b Sanger-Katz, Margot; Cain Miller, Claire (October 22, 2024). "Abortions Have Increased, Even for Women in States With Rigid Bans, Study Says". New York Times.
  17. ^ Alonso Galva, Alejandro A. (May 7, 2024). "A Texas woman got an abortion in Colorado, now her ex wants to subpoena her. A state shield law might stand in his way". CPR News.
  18. ^ Calfa, Jennifer; Kusisto, Laura (December 13, 2024). "Texas Sues New York Doctor, Challenging Abortion Provider Shield Laws". Wall Street Journal.
  19. ^ Honderich, Holly (14 December 2024). "Texas sues New York doctor accused of posting abortion pills". BBC News.
  20. ^ "Attorney General Ken Paxton Sues Activist New York Doctor for Illegally Providing Abortion Drugs Across State Lines". Attorney General Ken Paxton. December 13, 2024.
  21. ^ Wagner, Bayliss (13 December 2024). "Texas Attorney General Ken Paxton files first lawsuit against out-of-state abortion provider". Austin American-Statesman.
  22. ^ Heyward, Giulia (December 14, 2024). "Texas sues NY doctor over abortion pills, setting up a showdown over shield laws". Gothamist.
  23. ^ Murphy, Sean; Hill, Michael; MULVIHILL, Geoff (December 13, 2024). "Texas' abortion pill lawsuit against New York doctor marks new challenge to interstate telemedicine". Associated Press.
  24. ^ Review, Stanford Law; Sri-Kumar, Saj Sundar (2024-01-23). "Abortion, Blocking Laws, and the Full Faith and Credit Clause". Stanford Law Review. Retrieved 2024-03-15.
  25. ^ Caraballo, Alejandra (2022-07-29). "We're Going to See Abortion Fugitives. Here's How to Protect Them". Slate. ISSN 1091-2339. Retrieved 2024-03-15.
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