Republicans Challenge Abortion Shield Laws Across Blue States

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Republican officials are intensifying efforts to challenge abortion shield laws enacted in several Democratic-leaning states, aiming to prompt federal intervention that would override these protections. Legal experts suggest that while the campaign is vigorous, it faces significant hurdles.

Abortion shield laws are designed to protect abortion providers and patients from civil and criminal prosecution when abortion-related care crosses state lines. According to Rachel Rebouché, dean of Temple University’s Beasley School of Law, eighteen states plus the District of Columbia have enacted such laws.

In eight states, these shield laws explicitly protect providers even if the patient resides in a state where abortion access is restricted. This has been particularly important for telehealth providers who prescribe abortion medication to patients in states with strict abortion laws.

Republican attorneys general are actively contesting these laws through the courts while simultaneously urging Congress to enact federal legislation that would preempt state abortion shield laws. Over a dozen Republican attorneys general, including Texas Attorney General Ken Paxton and Louisiana Attorney General Liz Murrill, signed a letter requesting congressional leadership to pass a law banning these protections.

Paxton and Murrill have pursued legal action against New York-based physician Dr. Margaret Carpenter, accusing her of prescribing and mailing abortion pills to patients in their states. Paxton’s office filed suit against Carpenter in December, alleging that she sent abortion medication to a Texas woman. A Texas judge subsequently imposed penalties exceeding $100,000 on Carpenter, who did not respond to the lawsuit or appear in court.

Efforts by Paxton to enforce the Texas court ruling in New York have met resistance. A New York county clerk has refused to file the judgment against Carpenter, citing New York’s abortion shield laws. Paxton is now seeking a writ of mandamus to compel the clerk to enforce the ruling.

In Louisiana, a grand jury indicted Carpenter in January for allegedly prescribing abortion medication to a state resident. Authorities in Louisiana have requested her extradition. Both Paxton and Murrill have vowed to continue pressing charges.

New York Governor Kathy Hochul has expressed strong support for Carpenter, opposing the enforcement of Texas or Louisiana rulings in her state. This disagreement places Texas and New York on a legal collision course that could result in a protracted series of appeals and conflicting court decisions, potentially requiring intervention by a federal court.

Legal experts believe that Paxton’s pursuit of this case may be a strategic attempt to bring abortion shield laws before the Supreme Court for definitive judgment. Rebouché stated that the case represents a path toward Supreme Court consideration of whether shield laws withstand constitutional scrutiny.

Challenges to abortion shield laws will likely face significant obstacles. Arguments that shield laws violate the Constitution’s full faith and credit clause, which requires states to respect other states’ judicial decisions, remain largely untested in this context. New York and similar states may argue that the clause does not require the enforcement of penal laws from other states, offering a defense for shield laws.

Mary Ziegler, a law professor at the University of California, Davis, commented that the letter from Republican attorneys general to Congress might reflect doubts about winning federal court challenges to shield laws.

Beyond these state-level lawsuits, a Texas civil case could also bring the issue before the Supreme Court. In this case, a Texas man is suing a California doctor in federal court for allegedly providing abortion medication to his girlfriend. This wrongful death suit could potentially accelerate judicial scrutiny of shield laws more quickly than state attorney general actions.

The dispute over abortion shield laws highlights ongoing tensions between states with differing abortion policies and raises questions about the limits of state sovereignty and federalism. As legal battles unfold, the outcome could significantly impact abortion access and enforcement nationwide.