Abortion Shield Laws In The United States

Wade">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.

As of February 2024, states that have enacted such laws include:

• California
• Colorado
• Connecticut
• Massachusetts
• New York
• Vermont
• Washington

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. 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. 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.

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.

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

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. 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. 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.

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.

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.

• Shield laws in the United States