Abortion shield laws in the United States

Since the US Supreme Court overturned Roe v. Wade in June 2022, several states have enacted abortion shield laws to protect abortion access. The goal of these laws is to ensure that providers (in the state where abortion is legal) can perform abortions for patients who traveled from states where abortion is illegal; and also to protect telehealth actions, when the provider prescribes abortion pills to a patient while the patient is within an antiabortion state.

These laws allow nurse practitioners, doctors, and midwives to prescribe abortion pills to patients in states where abortion is restricted or banned. The laws vary from state-to-state, but in general they protect abortion providers and patients from legal attacks by prosecutors in antiabortion states.^[1]

States with abortion shield laws

As of February 2024, states that have enacted such laws include:^[1]

California^[2]^[3]^[4]
Colorado
Connecticut
Massachusetts
New York
Vermont
Washington

History

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.^[5] Following publication of the paper, several states passed shield laws for medical practitioners. As of July 2023^[update] 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.^[6] 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.^[6]

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.^[7]

Before the Dobbs supreme court decision, telehealth accounted for 4% of abortions in the US, and after Dobbs, the percentage increased to 16%.^[8]

Legal issues

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.^[9] 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.^[10] 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 lawful reproductive health care.^[1]

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.^[1]

Executive orders

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.^[1]

References

^ ^a ^b ^c ^d ^e "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
^ "Newsom signs abortion protections into law" Kristen Hwang, Cal Matters, 27 Sept 2023, https://calmatters.org/health/2022/09/california-abortion-bills/
^ "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/
^
California passed a package of 12 bills (which amended several existing statutes) including:
- 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.
^ Cohen, David S.; Donley, Greer; Rebouché, Rachel (January 2023). "THE NEW ABORTION BATTLEGROUND". Columbia Law Review. 123 (1).
^ ^a ^b Grant, Rebecca (23 July 2023). "Group using 'shield laws' to provide abortion care in states that ban it". The Guardian.
^ "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
^ "Telehealth abortions on the rise since Dobbs, new report shows" Sofia Resnick February 28, 2024 New Jersey Monitor https://newjerseymonitor.com/2024/02/28/telehealth-abortions-on-the-rise-since-dobbs-new-report-shows
^ 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.
^ 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.

[law-1] "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

[2] "Newsom signs abortion protections into law" Kristen Hwang, Cal Matters, 27 Sept 2023, https://calmatters.org/health/2022/09/california-abortion-bills/

[3] "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/

[4] California passed a package of 12 bills (which amended several existing statutes) including:
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.

[5] AB 254 by Assemblymember Rebecca Bauer-Kahan (D-Orinda) – Confidentiality of Medical Information Act: reproductive or sexual health application information.

[6] AB 352 by Assemblymember Rebecca Bauer-Kahan (D-Orinda) – Health information.

[7] AB 571 by Assemblymember Cottie Petrie-Norris (D–Laguna Beach) – Medical malpractice insurance.

[8] AB 1646 by Assemblymember Stephanie Nguyen (D–Elk Grove) – Physicians and surgeons: postgraduate training: guest rotations.

[9] AB 1707 by Assemblymember Blanca Pacheco (D–Downey) – Health professionals and facilities: adverse actions based on another state’s law.

[10] AB 1720 by Assemblymember Rebecca Bauer-Kahan (D–Orinda) – Clinics: prenatal screening.

[11] SB 345 by Senator Nancy Skinner (D-Berkeley) – Health care services: legally protected health care activities.

[12] SB 487 by Senator Toni Atkins (D-San Diego) – Abortion: provider protections.

[5] Cohen, David S.; Donley, Greer; Rebouché, Rachel (January 2023). "THE NEW ABORTION BATTLEGROUND". Columbia Law Review. 123 (1).

[med-6] Grant, Rebecca (23 July 2023). "Group using 'shield laws' to provide abortion care in states that ban it". The Guardian.

[7] "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

[8] "Telehealth abortions on the rise since Dobbs, new report shows" Sofia Resnick February 28, 2024 New Jersey Monitor https://newjerseymonitor.com/2024/02/28/telehealth-abortions-on-the-rise-since-dobbs-new-report-shows

[9] 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.

[10] 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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