Anti-abortion movement seeks to escalate clashes over blue state ‘shield’ laws

By Tierney Sneed, CNN

(CNN) — The anti-abortion movement is testing new strategies to force a legal confrontation over so-called shield laws in Democratic-led states that protect abortion providers in those states from prosecution.

The escalation in tactics is driven by the reality that the number of US abortions has only increased since the Supreme Court’s 2022 Dobbs v. Jackson Women’s Health Organization decision reversed the Roe v. Wade precedent that had enshrined abortion protections nationwide. That increase is being fueled by the widespread adoption of medication abortion and the ability of providers to ship abortion pills through the mail, including into states that ban or severely restrict abortion.

Louisiana is seeking the extradition of doctors in California and New York to face criminal charges after allegedly mailing medication abortion pills used by women in the state to terminate their pregnancies. Both states, citing their respective shield laws, have refused to cooperate with extraditions.

“We think that’s unconstitutional, and I will raise that issue in the United States Supreme Court, if I have to,” Louisiana Attorney General Liz Murrill told CNN.

With the stalemate, anti-abortion officials and lawyers are looking for new legal mechanisms to resolve the question of states’ powers to crack down on out-of-state conduct that is facilitating abortions within their borders. Texas in particular has become a testing ground for legal techniques seeking to put the conflict before the federal judiciary.

“The idea that the Dobbs decision was going to settle things and let states enact laws and there weren’t going to be any issues… that was always a fantasy,” said Marc Hearron, a senior counsel for the Center for Reproductive Rights, which has represented abortion providers in legal disputes.

Louisiana officials too are contemplating ways to use federal courts to force the extraditions, according to Tony Clayton, the district attorney in Baton Rouge who filed criminal charges against the New York doctor last year.

“It’s just a matter of time that she is going to have to come and answer” the charges, Clayton said.

He and other law enforcement officials are also calling on Congress to get involved, with attorneys general of 17 anti-abortion states sending a letter to lawmakers, ahead of a Senate hearing on medication abortion on Wednesday, seeking legislation that would preempt state shield laws. (Such a proposal would be subject to Democratic filibuster in the Senate.)

“It’s in the hands of Congress to fix it, and hopefully they do,” Clayton said.

Multiple strategies in Texas

The most novel strategies to test shield laws are coming out of Texas, a state that had previously evaded the reach of Roe v. Wade, while the precedent was still on the books, by using a private civil enforcement mechanism to outlaw conduct that facilitated abortions after six weeks into the pregnancy.

State Attorney General Ken Paxton has filed his own case pitting Texas’ abortion prohibitions against the law New York has enacted to shield abortion providers. He obtained a $100,000 judgement in Texas court last year against the New York doctor who has also been targeted by Louisiana officials, for violating Texas’ abortion restrictions and telemedicine requirements.

Paxton then sued in New York state court seeking that the court enforce the judgement, but the court last fall sided with a New York court clerk who refused to even docket the petition because of the state’s shield law. The case is now on appeal.

With the hurdles that state courts have posed, anti-abortion activists view the federal court as key to advancing their strategies.

Jonathan Mitchell, the architect of the 2021 civil enforcement abortion law, is spearheading wrongful death lawsuits that are filed in Texas federal courts and are built around accusations about the use of abortion pills, allegedly sent into Texas from out of state, to terminate a pregnancy.

In the meantime, the Texas legislature passed a follow up to the 2021 law to more aggressively target medication abortion sent into Texas from out of state. It empowers private citizens to sue those who manufactures, transports or provides abortion pills that have been unlawfully sent into Texas. Plaintiffs are entitled to a $100,000 payment from the defendant if their claims are successful, a monetary threshold that allows them to file their cases in federal court.

Mitchell has indicated in one wrongful death case, brought against the same California abortion provider targeted by Louisiana’s latest prosecution, that he intends to amend the lawsuit to include the recently passed Texas law. (That and the previous civil enforcement law take aim at those who facilitate an abortion, but bar the claims against the women whose pregnancies were terminated).

Mark Lee Dickson, director Right to Life Across Texas, predicts that there will be more wrongful death lawsuits, filed on behalf of men whose partners terminated pregnancies via abortion pills sent in 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 said.

CNN’s Sarah Owermohle contributed to this report.

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