Red state abortion bans headed for clash with blue state shield laws
A clash is looming between anti-abortion red states and the blue state telemedicine shield laws trying to preserve abortion access.
More than a dozen states have laws shielding medical providers and others from out-of-state investigations and prosecutions regarding abortions and gender affirming care. But six states — Colorado, Massachusetts, New York, California, Vermont and Washington — have gone even further.
Those shield laws offer protection for doctors, nurses and other practitioners who prescribe and send abortion pills to people living in states that ban or severely restrict abortion.
But the laws have only been in existence for about a year and have never been tested in court.
Abortion opponents see them as blatant infringement on states' rights.
“States have a duty to protect their most vulnerable citizens and their families from harm. One state cannot intrude on another state’s efforts to protect the lives and health of its citizens — including the lives and health of unborn children and their families,” said Erin Hawley, a top attorney at the Alliance Defending Freedom (ADF), a right-wing legal powerhouse.
“Pro-abortion states who don’t recognize the basic principle that life is a human right cannot undermine the laws of other states simply because they don’t agree with them,” she said.
Hawley and the ADF represented anti-abortion doctors at the Supreme Court who are trying to restrict access to one of the two abortion medications.
The Alliance Defending Freedom didn’t comment on potential shield law litigation efforts, but advocates on both sides of the abortion divide said they think a court challenge is only a matter of time.
“It's hard for me to imagine that you're not going to see some attempts to challenge these things. And the best way to do that probably is to try to indict a provider,” said Greer Donley, an abortion law expert and associate professor at the University of Pittsburgh School of Law.
“This is not just a state determining what their policy is going to be. This is really a state trying to sabotage the governance of their neighboring states,” said John Seago, president of Texas Right to Life organization. “It's a complicated legal and policy question. But it is something that we take seriously, and we do feel like there will have to be some challenges.”
Providers in shield law states have been a resource for tens of thousands of people living in red states as abortion access continues to shrink in the wake of the 2022 Dobbs decision that overturned Roe v. Wade. There are nearly 24 states that ban or restrict abortion in some way.
“The shield laws are really kind of providing a safety net to help the most vulnerable people who can't access abortion any other way,” Donley said.
According to a new report from the abortion-rights research group Society of Family Planning, nearly 8,000 people per month in states with bans or severe restrictions were getting medication abortion from clinicians operating under shield law protections from October through December 2023.
The Food and Drug Administration has only allowed abortion pills to be prescribed through telehealth since 2020, but the report found 19 percent of all medication abortions now involve telemedicine.
“The reality is that when abortion is banned or criminalized, it doesn't go away. It goes underground. And what shield laws offer is an above ground part of the medical system and practice to provide services that are by licensed providers using certified medications,” said Julie F. Kay, executive director and founder of the Abortion Coalition for Telemedicine.
Shield laws stipulate that courts and officials won't cooperate if a state with an abortion ban tries to prosecute, sue or penalize a health care provider who offers abortion via telemedicine to a patient living in the state with a ban.
The laws have also redefined the way telemedicine is practiced. Without a shield law, a provider is protected only when both the patient and provider are located in the abortion-friendly state. But for purposes of a shield law, both provider and patient are considered residents of the same state.
Even with telemedicine shield laws, there is a risk to both the provider and patient because the pills are illegal in the states with near-total bans.
Only two organizations, Aid Access and the Massachusetts Medication Abortion Access Project (MAP), operate nationally.
A group called Abuzz ships to some states with bans, and a new organization in California called Armadillo also operates in states with bans, though not yet in every state.
Angel Foster, director of Massachusetts group, said the organization is prepared for potential legal challenges and has an organizational model designed to distribute risk. There are different people prescribing pills, ordering them and shipping them.
“Fundamentally, our practice is based on trust, and it's trust in patients, trust in each other but also trust in the shield law and trust in Massachusetts,” Foster said. “We believe that the shield law is strong, and we feel very confident that if there are legal challenges to us, whether that's criminal, civil or licensure penalties that the Commonwealth will support us.”
The providers themselves are also taking precautions, like avoiding travel to states with abortion bans where they could be arrested.
“One of the basic parts that our providers have is that they don't try to travel to states where there are bans or restrictions in place. They're not going to Mardi Gras or South by Southwest. They're not visiting, if they have parents in Florida or you know kids in college in the South, and that is a real sacrifice many of them are making,” Kay said.
Telemedicine shield laws are relatively new, which is one of the reasons why red states haven’t yet challenged one.
Any litigation would also likely need to happen in a blue state, where the courts may not be as friendly to anti-abortion attorneys.
“It's much more likely that a court in Texas would find a way to say the shield law is unconstitutional in some way” and seek to prosecute the provider, Donley said. “But just because the Texas court says that doesn't mean that anyone in New York has to follow that.”
"So they really are going to have to convince New York courts to not follow New York law, which is just an exceptionally high burden to overcome,” Donley added.
Seago at Texas Right to Life said the group is looking for the right circumstances.
“This is something that we don't want to rush into. We want to do it correctly. Just like with overturning Roe v. Wade. Our organization is very aggressive, but we understood you have to be strategic about that,” Seago said.
He predicted that there will be some “significant cases” challenging shield laws within the next year but noted that there’s only a “small coalition” of anti-abortion groups willing to take up the fight.
“There are a lot of good, effective pro-life organizations that are stuck playing defense. They are fighting off ballot initiatives. They are trying to make sure that their statewide officials that are pro-life are getting reelected. And they feel very much kind of on the backfoot,” Seago said. “And so that's so we have very few partners in this fight.”