After overturning Roe v. Wade and imposing total abortion bans currently in 12 states, anti-abortion politicians have now set their sights on shield laws\u2014a critical innovation that has helped preserve some measure of access to reproductive health care across the United States. While opponents of shield laws claim they just want to leave abortion \u201cup to the states,\u201d their efforts are, in fact, part of a longstanding campaign to ban abortion nationwide and criminalize providers and patients.<\/p>\n
State shield laws emerged as a response to the national public health crisis following the end of Roe, in which abortion bans and threats of criminalization have driven\u00a0tens of thousands of people<\/a> to seek abortion care across state lines. Now\u00a0implemented in 22 states and Washington, DC<\/a>, shield laws are designed to minimize legal risks for patients, providers, and others assisting those seeking abortion and other health services (such as gender-affirming care)\u2014by preventing state officials from cooperating with out-of-state prosecutions and extraditions. Notably,\u00a0eight states\u2019 shield laws<\/a> explicitly protect clinicians who provide care via telehealth to patients in states with total bans and other severe restrictions, typically by mailing them abortion pills.\u00a0<\/p>\n Telehealth and the Abortion Access Crisis\u00a0<\/p>\n Rigorous research shows that telehealth provision of abortion care is\u00a0just as safe as in-person care<\/a>. Combined with the work of\u00a0abortion funds<\/a>, practical support networks,<\/a> and\u00a0self-managed care networks<\/a>, telehealth provision under shield laws has helped maintain a degree of\u00a0abortion access for tens of thousands of Americans<\/a> in states with abortion bans. But despite these efforts, patients in restrictive states regularly encounter severe logistical and financial burdens, along with systematic care denials and delays<\/a> that put their health and their lives at risk. Many are also forced to give birth against their will<\/a>. Not content with these draconian consequences, anti-abortion activists are trying to use the courts, Congress and state legislatures to go after\u00a0providers and patients.\u00a0<\/p>\n This year,\u00a0Louisiana issued the first criminal indictment of an abortion provider<\/a>\u00a0since\u00a0Roe v. Wade was overturned, charging a New York physician with criminal abortion for allegedly providing abortion pills via telehealth to a Louisiana teenager.\u00a0The same physician was fined by a judge in Texas for allegedly mailing abortion pills to a patient there. In both cases officials in New York complied with the state\u2019s shield law by not cooperating with these prosecutions. In July, a Texas man\u00a0filed a federal lawsuit against a\u00a0California physician<\/a>, alleging she helped his girlfriend obtain a medication abortion via telehealth under that state\u2019s shield law. These interstate conflicts make it possible that the future of shields laws\u00a0could be decided by the courts<\/a>.\u00a0<\/p>\n But these legal attacks are not the only tactic being used to criminalize abortion care. States are advancing legislation that would punish shield law providers, abortion funds and even patients themselves. For example,\u00a0Louisiana<\/a> passed a law last year that classifies mifepristone and misoprostol (drugs used in medication abortion) as\u00a0controlled substances and enacted a bill that adds new penalties and a private right of action against shield law providers while labeling them\u00a0\u201cabortion drug dealers.\u201d Other states have introduced bills that ban providing or delivering medication abortion. One of these, House Bill 7 from Texas<\/a>, mirrors prior \u201cbounty hunter\u201d legislation by allowing for civil lawsuits against those that provide, possess, deliver or manufacture medication abortion pills and explicitly states that shield laws are not a defense.\u00a0The Texas bill, which is expected to be signed into law soon, could also revive\u00a0criminal charges for patients seeking abortion care. This summer, Montana<\/a> introduced a bill that allows prosecutors to charge anyone who facilitates travel for abortion care (including the pregnant person themself) with\u00a0\u201cabortion trafficking.\u201d\u00a0<\/p>\n Laying the Groundwork for a National Abortion Ban<\/p>\n These attacks also take direct aim at national abortion access. For example, the most recent Texas shield law plaintiff alleges that the California clinician violated the Comstock Act, a dormant 19th-century anti-obscenity law that could be misused to criminalize the distribution of medication abortion anywhere in the country. The Comstock Act has already been cited in legal efforts to force the Food & Drug Administration to further restrict\u2014or even eliminate\u2014access to mifepristone nationwide. Last Congress, Republican Senators (including J.D. Vance) went so far as to ask the Department of Justice to use Comstock to end telehealth abortion care. This aggressive national agenda is on full display in a letter signed last month by 15 Republican attorneys general, demanding that Congressional leadership take action to\u00a0invalidate state shield laws<\/a> on the federal level.\u00a0\u00a0<\/p>\n In short, attacks on shield law provision lay bare the anti-abortion movement\u2019s goal of weaponizing the criminal legal system\u2014often by investigating, arresting, or prosecuting patients and providers\u2014to eliminate abortion access nationwide. Unfortunately, such criminalization is already a reality for many and is intertwined with structural inequity. The same Black, Brown, Indigenous, immigrant, LGBTQ+, and working-class communities that are already over-policed and surveilled by the criminal legal and family policing systems are those most likely to be criminalized for abortion, miscarriage, or actions taken during pregnancy that are rarely punished in more privileged communities<\/a>. These patients are also those most likely to face serious financial and logistical burdens when seeking care.\u00a0<\/p>\n Human Rights Versus States\u2019 Rights<\/p>\n Ultimately, state shield laws pose a question that is recurrent in American history: whether states denying fundamental human rights to their residents can force other states to honor or even facilitate those abuses. Like those\u00a0who resisted other fundamental injustices, shield law providers are accused of being \u201coutside agitators\u201d and infringing on \u201cstates\u2019 rights,\u201d but the profound harms they are attempting to mitigate are pervasive: Patients are already being denied reproductive autonomy and life-saving interventions<\/a> because of laws that prevent doctors from providing the best standard of care.\u00a0<\/p>\n In case there was any doubt, the coordinated attack on shield law provision makes it abundantly clear that overturning Roe v. Wade and leaving abortion \u201cup to the states\u201d was never the final goal of the anti-abortion movement. Prosecution of telehealth providers is just the next step in leveraging the criminal legal system to make abortion inaccessible for all.<\/p>\n","protected":false},"excerpt":{"rendered":"After overturning Roe v. 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