The anti-abortion movement is escalating its legal strategies to confront so-called shield laws in Democratic-led states. These laws protect abortion providers from prosecution in states that have enacted more permissive abortion regulations. This shift comes in response to increased abortion rates in the United States since the Supreme Court’s ruling in Dobbs v. Jackson Women’s Health Organization in March 2022, which overturned the long-standing Roe v. Wade precedent.
The rise in abortion numbers has been attributed to the growing use of medication abortion and the ability of providers to distribute abortion pills through the mail, even into states with strict abortion prohibitions. In Louisiana, officials are pursuing the extradition of doctors from California and New York for allegedly mailing medication abortion pills to women within the state. Both states have declined to comply, citing their shield laws.
Liz Murrill, Louisiana’s Attorney General, expressed her intention to challenge this situation in the United States Supreme Court, stating, “We think that’s unconstitutional, and I will raise that issue in the United States Supreme Court, if I have to.” The ongoing legal stalemate has prompted anti-abortion officials and lawyers to explore new legal avenues to address the question of states’ rights to regulate out-of-state actions that facilitate abortions.
Texas is emerging as a focal point for these legal strategies, with officials aiming to bring the conflict to the federal judiciary. Marc Hearron, senior counsel for the Center for Reproductive Rights, remarked, “The idea that the Dobbs decision was going to settle things… that was always a fantasy.” In Baton Rouge, District Attorney Tony Clayton has indicated that they are considering utilizing federal courts to force extraditions. “It’s just a matter of time that she is going to have to come and answer” the charges, he stated.
Legal Maneuvers in Texas
The most innovative legal tactics are emerging from Texas, a state where traditional abortion protections were circumvented even before the Dobbs decision. Texas has implemented a private civil enforcement mechanism aimed at outlawing behaviors that facilitate abortions after six weeks of pregnancy.
Ken Paxton, Texas Attorney General, has initiated legal action against a New York doctor who allegedly violated Texas’ abortion restrictions. He achieved a $100,000 judgement in Texas court last year against the same physician targeted by Louisiana authorities. However, when Paxton sought to enforce this judgement in New York, the state court dismissed the case, citing its shield law. This ruling is currently under appeal.
With state courts posing challenges, anti-abortion activists are leaning towards federal courts to advance their objectives. Jonathan Mitchell, the architect of Texas’ civil enforcement abortion law, is leading wrongful death lawsuits in federal court based on claims related to abortion pills allegedly sent from out of state.
Additionally, the Texas legislature recently passed a law that intensifies scrutiny on medication abortions coming from outside the state. This law allows private citizens to sue individuals involved in the manufacture, transport, or provision of unlawfully sent abortion pills, with successful plaintiffs entitled to a payment of $100,000. Mitchell is considering amending his lawsuits to include this new legislation.
Mark Lee Dickson, director of Right to Life Across Texas, anticipates an increase in wrongful death lawsuits, particularly those filed on behalf of men whose partners have used abortion pills sent from out of state. “The only hope we have to push back against a state line – be it New York, New Jersey or California – are the federal avenues,” he noted.
As the anti-abortion movement intensifies its confrontations over shield laws, the implications for both abortion providers and women seeking these services could be profound. With legislative and judicial battles taking shape across multiple states, the landscape surrounding abortion rights in the United States continues to evolve.
