Abortion Shield Laws: A New War Between the States

Abortion Shield Laws: A New War Between the States
Abortion Shield Laws: A New War Between the States

Behind an unmarked door in a boxy brick building outside Boston, a quiet rebellion is taking place. Here, in a 7-by-12-foot room, abortion is being made available to thousands of women in states where it is illegal.

The patients do not have to travel here to terminate their pregnancies, and they do not have to wait weeks to receive abortion medication from overseas.

Instead, they are obtaining abortion pills prescribed by licensed Massachusetts providers, packaged in the little room and mailed from a nearby post office, arriving days later in Texas, Missouri and other states where abortion is largely outlawed.

This service and others like it are operating under novel laws enacted in a half-dozen states — Massachusetts, Washington, Colorado, Vermont, New York and California — that have sought to preserve abortion access since the Supreme Court overturned the nationwide right to abortion in June 2022. The laws have been in use only since the summer and have not been tested in the courts, but they are already providing abortion access to tens of thousands of women in states with bans, especially low-income patients and others who cannot travel.

Called telemedicine abortion shield laws, they promise to protect doctors, nurse practitioners and midwives licensed in those six states who prescribe and send abortion pills to patients in the nearly two dozen states that ban or sharply restrict abortion.

The laws stipulate that officials and agencies of their states will not cooperate with another state’s efforts to investigate or penalize such providers — a stark departure from typical interstate practices of extraditing, honoring subpoenas and sharing information, legal experts on both sides of the abortion issue say. Many expect them to ultimately be challenged in federal court.

Abortion opponents see the laws as brazen infringement on state sovereignty.

“You have states not just picking their own strategy but really trying to completely sabotage the governing efforts of their neighboring states,” John Seago, the president of Texas Right to Life, said.

“It can’t stand, and we can’t be content with this new development,” he added.

The threat of shield laws is one reason that three states — Idaho, Kansas and Missouri — petitioned to join a case the Supreme Court will hear next month that seeks to bar the mailing of abortion pills and to require in-person doctor visits instead of telemedicine. The petition was denied.

“When you have states actively seeking to circumvent each other’s laws, that raises a very real legal problem that will stretch far beyond just the abortion sphere,” said Will Scharf, a Republican candidate for attorney general in Missouri, who helped draft anti-abortion legislation when serving as policy director for the state’s governor six years ago.

Pills have become the most common abortion method nationally, and abortion rights advocates consider shield laws a crucial way to counter the wave of bans enacted since the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization.

This might be the most important event since Dobbs on so many levels,” Rachel Rebouché, the dean of Temple University Law School, who has worked with shield law advocates and legislators. “Thousands and thousands of pills are being shipped everywhere across the United States from a handful of providers. That alone speaks to the nature of what mailed medication abortion can do.”

Before shield laws were enacted, Aid Access, one of the organizations in the forefront of telemedicine abortion, served patients in states with bans by issuing prescriptions from Europe and shipping pills from a pharmacy in India. Pills could take weeks to arrive, potentially putting patients beyond 12 weeks’ gestation, the recommended threshold for taking the medication.

With shield laws, “some people who might not have gotten an abortion if they had to take off work and go to a clinic, or wait three weeks and all of that, are doing it now.” said Dr. Linda Prine, a New York shield law provider.

Aid Access providers are now using shield laws to serve about 7,000 patients a month, nearly 90 percent of them in states with bans or severe restrictions, according to Dr. Abigail Aiken, an associate professor at the University of Texas at Austin, who studies Aid Access data.

The shield laws upend the usual telemedicine model, under which out-of-state health providers must be licensed in the states where patients are located.

Beyond providing abortion access to individual patients, the shield-law movement carries broader implications for abortion politics, and supporters are working to enact similar laws in as many states as possible so the approach becomes commonplace, according to Francine Coeytaux, a co-founder of Plan C, a clearinghouse for medication abortion information.

“The shield laws are about a state’s legislative and justice system having skin in the game,” she said.

Carol, who asked to be identified by her middle name to help keep her role private, met me behind the brick building outside Boston and escorted me through a back door, down a warren of hallways. Others who rent offices in the building haven’t asked what she does there, she said, adding: “I’m kind of hoping that most people aren’t really that curious about what’s going on.”

At a plain white table, Carol, who has a master’s degree in public health, began her routine: checking a spreadsheet of prescriptions; printing out labels with medication information and patients’ names; printing address labels with tracking numbers and adding them to the spreadsheet.

Patients contact this service and others online and fill out forms providing information about their pregnancy and medical history. Carol’s colleague, Lauren Jacobson, a nurse practitioner, writes prescriptions, evaluating whether patients are medically eligible. They can be up to 12 weeks’ pregnant and must have no disqualifying medical issues like an ectopic pregnancy or a blood-clotting disorder. Patients and providers can communicate by email or phone if needed.

“We’re a free country,” said Ms. Jacobson, who sometimes writes 50 prescriptions a day. “So let’s put that to the test. Here we are and we’re not going to be intimidated, and we have our states backing us.”

Carol pulled the two abortion medications from storage boxes: mifepristone, which stops a pregnancy from developing, and misoprostol, taken 24 to 48 hours later to spur contractions to expel pregnancy tissue.

“I don’t really consider myself a rule breaker,” she said. “So it’s funny that here I am sitting in this tiny little closet surrounded by pill bottles.”

The operation resembles a small-scale assembly line, preparing medication for six packages at a time: one mifepristone pill in a manufacturer’s prepackaged box and 12 misoprostol tablets counted out by hand from bottles of 100 supplied by a wholesaler. Carol slid the medications into plain envelopes lined with bubble wrapping, along with a 10-page pamphlet from the mifepristone manufacturer and illustrated instructions from Aid Access about taking the medication and expected side effects, like cramping and bleeding.

She drove several miles to a post office to mail the envelopes.

“Getting ready for Christmas?” another customer in the post office asked one day, she recalled.

“Surprise, I’m actually Santa Claus,” she replied cheerfully.

One of Carol’s envelopes arrived at the home of Ashley Dickey in Texas.

Ms. Dickey has two young children and said she had experienced serious postpartum depression after those pregnancies. She said she dissolved in tears when she became pregnant again and concluded that she could not manage another pregnancy and raise another child. “It’s just not good for anybody,” she said.

When she learned she could receive pills by mail, “I was so grateful,” she said, adding, “If I would have had to travel somewhere, it would have been catastrophic, financially and then just emotionally.”

Supporters say shield laws are already making substantial progress toward an important goal: helping patients who cannot afford — financially or logistically — to travel to another state for an abortion.

“It’s reaching the ones that were impacted the most: low-income, poor people, communities of color, Indigenous,” said Michelle Colón, the executive director of SHERo Mississippi, an organization supporting reproductive rights for people of color.

Nationally, there are three main providers: Aid Access; the Massachusetts Medication Abortion Access Project (called The MAP); and a service called Abuzz, which does not yet serve all states with abortion bans. They charge $150 or $250, though all three services provide pills for reduced prices or even at no cost, based solely on what patients say they can pay.

Dr. Rebecca Gomperts, a Dutch physician who founded Aid Access, said over half of its shield-law patients cannot pay full price. About a third of The MAP’s patients can afford only the service’s $5 minimum, said Dr. Angel M. Foster, director of The MAP.

But shield-law providers say it is uncertain whether they can sustain their pay-what-you-can approach. Most providers are absorbing the cost for thousands of patients who can’t pay full price. So far, most abortion funds — organizations that provide financing to help patients obtain abortions — have not given money for sending pills to anti-abortion states, partly because they do not know if shield laws would protect the funds.

“I’ve had several funds say, ‘Our lawyers say we cannot do this,’” said Susan Yanow, a longtime reproductive health activist working with The MAP, who has nonetheless gotten some funds to contribute.

A few funds openly support shield-law activity. “We are here to boldly make a statement,” said Karen Middleton, president of Cobalt Abortion Fund in Colorado, which gives $2,500 a month to that state’s provider. And some advocates are starting funds, including Jodi Jacobson, an activist based in California, who said she wanted to support “providers who are losing money” performing what she called “medical civil disobedience.”

Several Republican attorneys general from states with strict abortion prohibitions declined requests to discuss shield laws. But Mr. Scharf, who is challenging Missouri’s incumbent attorney general in the Republican primary, predicted that the shield laws would almost certainly be challenged in court.

“Constitutional litigation is obviously an option here,” he said. “Ultimately, whenever you get attempts like this to circumvent our constitutional system of federalism, that’s going to be something that’s litigated.”

Dr. Seago of Texas Right to Life said taking action against shield-law providers would be “a difficult challenge” that would require “the right case,” including a patient “on the receiving side of those illegal activities” who would cooperate with a civil suit or prosecution.

“We can definitely promise that in a pro-life state like Texas with committed elected officials and an attorney general and district attorneys who want to uphold our prolife laws, this is not something that’s going to be ignored for long,” he said.

Many shield-law providers are taking precautions, including not traveling to states with abortion bans, where they could be more vulnerable to arrest. Some are not sending pills to states where they have family. Some are creating trusts to protect their assets from civil suits.

“At any moment, I might get a cease-and-desist order, or I might get a lawsuit, or I might get some district attorney coming after me, I have no idea,” said Dr. David Wiebe, who operates under Colorado’s shield law. “I’m absolutely flying out at full risk here.”

The MAP has taken several protective steps. All of its prescribers are within Massachusetts. Pills are stocked and packaged at a separate location by workers hired by Cambridge Reproductive Health Consultants, a nonprofit Dr. Foster leads. “Our model is about distributing risk,” she said.

One national mail-order pharmacy, Honeybee Health, based in California, is evaluating whether it can send pills to states with abortion bans under California’s shield law, a step that would allow providers in any shield-law state to send their prescriptions to Honeybee and avoid stocking and shipping pills themselves.

Honeybee’s co-founder and president, Jessica Nouhavandi, said she hoped to do so, but worried about jeopardizing her business, which dispenses other medications too. If an anti-abortion state like South Carolina pulled her license, “what happens to my thousands of South Carolina patients who get their blood thinners from me?” she said.

Another unknown is the outcome of the lawsuit by abortion opponents seeking to curtail mifepristone. An appeals court ruling effectively barred the mailing of mifepristone and required in-person doctor visits. The case is now before the Supreme Court.

“If we prevail on that, all these shield laws will be rendered moot at that point because then there’ll be a federal policy prohibiting such a transaction,” said Erik Baptist, senior counsel for the Alliance Defending Freedom, which represents abortion opponents in that case. Some shield law providers say they will look for legal ways to continue.

Texas, which has strict bans, is home to about a third of shield-law patients, including Elizabet, who asked to be identified by her middle name to protect her privacy. She considered traveling to California, where a friend lives, but medication abortion at a clinic there would cost $750, plus transportation expenses.

She was relieved to find Aid Access and to receive pills mailed from Massachusetts. Although abortion bans target providers and not patients, she said she was still nervous about people in Texas finding out.

“That’s been very scary,” she said, “but I was like, you know what, I have to trust it.”

Weeks later, Elizabet said she planned to visit a doctor for birth control, but worried about being asked if she’d taken abortion pills.

Ms. Jacobson, who prescribed her the medication under Massachusetts’ shield law, reassured her, noting that there was no medical reason to disclose having taken abortion pills.

“The symptoms that the abortion pills cause are exactly the same as those that a miscarriage causes, so there is no possible way for a provider, a doctor, to look at you, do any test and know that you took the pills,” she said, adding, “We’ve helped a lot of people navigate situations in places like Texas.”

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