Here’s a long and detailed story about abortion shield laws and the significant effect they’ve had on abortion access post-Dobbs. You should read the whole thing but I wanted to focus on this bit from Texas that I had not known before reading this.
The numbers are even more stunning in Texas. Abortions began plummeting in the state after lawmakers enacted SB 8, also known as the Heartbeat Act, which banned terminations after six weeks of pregnancy. Shortly after Dobbs, the state outlawed abortion almost entirely. But this past June, almost 4,200 women in Texas managed to access abortion care via telehealth, #WeCount found.
“Anti-abortion extremists thought, ‘we’re going to overturn Roe, we’re going to ban abortion, we’re going to trap people [where they live], and they’re not going to get care,’” says Lizzy Hinkley, legal director of the Abortion Coalition for Telemedicine, which advocates for shield protections across the country. “Because of shield laws and telehealth providers, that’s not the case—and they’re furious.”
Murrill’s frustration has been increasingly evident in her public pronouncements. Blue states “don’t agree with the laws of our state, and so they have this whole system set up to nullify our laws,” she complained to NOLA.com last month. Last summer, she and other Republican attorneys general urged GOP Congressional leaders to pass federal legislation rendering shield laws invalid. “These laws are blatant attempts to interfere with states’ ability to enforce criminal laws within their borders and disrupt our constitutional structure,” their letter said.
Also signing the letter was Texas Attorney General—and GOP senatorial hopeful—Ken Paxton, who expanded on his grievances in a press release. Shield protections, he wrote, “embolden lawlessness, weaken our ability to enforce Texas laws, and trample on the rights of sovereign states to protect the unborn.”
Yet it was a 2021 Texas law—legislation that Paxton strongly supported—that prompted abortion advocates and blue-state policymakers to start looking for creative and expedient ways to protect abortion providers and patients. SB 8, the brainchild of far-right legal strategist Jonathan Mitchell, banned abortions early in pregnancy in flagrant violation of Roe (indeed, one of Mitchell’s goals was to use the law as a vehicle to reverse Roe). Even more ominous, it created a novel “bounty hunter” provision that gave any private citizen the power to sue anyone who “aided and abetted” an abortion for $10,000 per violation.
The law was a clear sign that if and when Roe was reversed, red states would try to enforce their anti-abortion policies across their borders. “The end game wasn’t just to stop abortions in Texas,” says Rachel Rebouché, a law professor at the University of Texas in Austin who previously was dean of Temple University’s law school. “It was to stop abortion everywhere.” SB 8 also showed that abortion foes intended to be audacious in their strategies; if abortion supporters wanted to stave off disaster, they needed to be innovative and fearless, too.
Soon Rebouché and two fellow legal scholars, Drexel University’s David Cohen and the University of Pittsburgh’s Greer Donley, were brainstorming about some of the measures the Biden administration and Democratic-controlled states might take to safeguard patients and providers. What began as a conversation over lunch at a Mexican restaurant in Philadelphia in May 2021 morphed into a series of influential op-eds and journal articles. “We put every idea on the table,” Rebouché says.
At the time, there was no such thing as a shield law because there was no need. True, in America’s federalist system of government, states frequently pass laws that conflict with each other—on issues like gambling and recreational marijuana, for example. But to function, federalism also depends on interstate “comity”—the principle of mutual respect and deference to the laws and sovereignty of other states. “No local prosecutor is going to be that upset that someone from a state where casinos are illegal spends a weekend going to Las Vegas to gamble,” Cohen says. But abortion has never been this kind of an issue. “Because of its unique position in American politics and law,” Cohen says, “abortion highlights the complications of the [federalist] system in a different way.”
Perhaps the closest analogy to abortion shield laws is the “personal liberty laws” that Northern states enacted to resist the Fugitive Slave Act before the Civil War. Some laws required that fugitive slaves be given a jury trial before being returned to the state from which they had fled; others prohibited state officials from arresting or returning fugitive slaves and local jails from housing them.
“The liberty laws were something we were consciously emulating,” says Connecticut state Rep. Matt Blumenthal, who reached out to the law professors after reading an op-ed they published in the New York Times. Within weeks, he co-sponsored his state’s abortion shield law, which was signed in May 2022—the first in the country. Blumenthal brushes aside complaints by the likes of Paxton and Murrill that by passing shield laws, blue states somehow weren’t playing fair. His favorite response to the red-state critics: “Put down your sword, and we’ll lay down our shield.”
There’s more, so read the rest. As noted before, some of the red state attacks on shield laws, in particular on the civil judgments rendered in those states against blue state doctors, have yet to be tested before SCOTUS. There remain more direct threats at the federal level to mifepristone, and not every blue state has adopted all of the shield laws that have been passed in other states. (It helps that many of the lawsuits that have been filed have been losers, but that’s not a thing you can count on forever.) For now at least, the defenses are holding. I fear the pressure will just ratchet up as Trump gets weaker and more deranged, but let’s not borrow trouble. The reason things aren’t nearly as bad as they could be is because a lot of people on our side, specifically a lot of people with power on our side, took action to prevent the worst from happening. Let’s not forget that.