How Lawmakers Use Shield Laws to Protect Abortion Care Access

November 14, 2023 - Shield laws have become a key tool for states in which abortion is legal to further protect abortion care access for people living out of state.

The laws are set up to help individuals living in abortion-restriction states get the procedure in an abortion-friendly state, all without the looming specter of legal prosecution following them. Shield laws protect patients from prosecution or investigation by their home state.

That’s been important in a post-Roe world, where abortion laws vary by state and can carry with them pretty hefty civil or criminal consequences. Patients who might not consider traveling to an abortion-friendly state for the procedure out of fear of those consequences could change their minds knowing that there are legal provisions in place to keep their home state from prosecuting or investigating them.

Shield laws extend similar kinds of protections for providers and others involved in abortion care access. A clinician might be more open to giving an abortion to an out-of-state patient with shield laws in place.

On a recent episode of Healthcare Strategies, experts Randi Seigel, partner at Manatt Health, and Alice Leiter, counsel at Manatt Health, outlined the state of shield laws in the United States as of September 2023.

Sara Heath:

Hi, and welcome to Healthcare Strategies. I'm Sara Heath, managing editor at Xtelligent Healthcare Media and the lead editor on Patient Engagement HIT.

The 2022 Dobbs versus Jackson Women's Health Supreme Court decision, which virtually undid Roe v. Wade, set off a shift in how pregnant people can access abortions by triggering a domino effect of abortion restriction laws to varying degrees across the country. According to the website abortionfinder.org, 14 states completely ban abortion, 30 states ban abortion after a specified point in pregnancy--in some cases six weeks into pregnancy--, 13 states require a person seeking an abortion to wait a specified period of time before their abortion, and 22 states require some type of parental involvement for a minor to get an abortion.

Some of these laws come with civil and criminal penalties for the person seeking the abortion or others involved in carrying out the procedure. States in which abortion is legal are working against those restrictions by doing more than just absorbing some of the people surging to access the procedure. Legislation is being passed in states where abortion is legal to protect individuals traveling from out of state to get an abortion.

Here to chat with us today about that kind of legislation are Randi Seigel, a partner at Manatt Health, and Alice Leiter, counsel at Manatt, both of whom recently worked on a survey assessing the state of these abortion protections. Thanks for joining us today.

Alice Leiter:

Thanks for having us.

Randi Seigel:

Thanks for having us.

Sara Heath:

Of course. I guess maybe to begin, if you wanted to outline what the nation's legal landscape looks like for abortion protections and restrictions and how that impacts care access.

Randi Seigel:

Sure. So as you just described, the national landscape is quite divided and constantly changing, with states that protect abortion access increasing access by not only passing shield laws to provide protections, but also in some cases removing certain barriers to access that may have existed in the states. So in some cases, for instance, we're seeing states expand the provider types who may be able to render abortions or making medication abortions more easily available.

However, as you mentioned, over half the states seriously restrict access to abortion, and many of those states are increasing those restrictions by reducing the gestational age when an abortion might be legal, passing civil and criminal laws that further penalize those individuals helping provide access to abortion or even individuals who may just merely be facilitating access, targeting individuals who might just be providing information about abortion care or even providing support for funding.

And several states have outright banned abortion provided after a telemedicine encounter, which therefore severely reduces access to abortion, particularly for those who do not have the ability or the means to travel to an in-person provider. And in some of those states, in-person conduct has to occur on several occasions before a provider can perform an abortion. As a result, pregnant persons who reside in states where abortion is severely restricted are traveling to and seeking abortion care from providers who may be residing in states with more abortion access. And therefore, there's been an influx of abortion seekers to states that border many of the states with restrictions.

Sara Heath:

Yeah, and you just mentioned those "shield laws," which are the subject of your report and a lot of our conversation today. Can we just outline what shield laws are and why some states might be enacting them?

Alice Leiter:

Sure. "Shield laws" [is] not necessarily a one-size-fits-all term, and they, of course, vary by state. But at their core, all abortion shield laws are designed to protect abortion seekers, providers, or both in states where abortion remains legal from actions by states in which abortion is not legal. A state in which abortion--and that's either the receipt of abortion-related care or the provision of such care--is a crime can pursue civil, criminal, or professional consequences for violation of its own abortion laws. And shield laws protect those who are seeking, providing, or facilitating abortion-related services from those actions in states where abortion is criminalized.

You mentioned, Sara, the Dobbs decision--most of these laws have been enacted in the wake of the Dobbs decision, which, of course, now leaves the legality of abortions up to the individual states. And states have found that it's not always enough for them to protect their own abortion providers and seekers, given the interstate actions and the potential for such actions that I just mentioned. And so, as a result, a number of states have enacted these so-called shield laws that provide an additional layer of protection for those who are seeking or providing reproductive healthcare in a state where it's legal.

Sara Heath:

Yeah. And I wanted to hear a little bit about how states make these laws. I'm definitely considering the fact that, as you just mentioned, they're not one-size-fits-all, but do they construct them in a vacuum of "here's what is in our state's interests," or is there some kind of almost consideration to their relationship with any abortion restriction states that they might border?

Randi Seigel:

So just at the most basic level, most of the shield laws have been passed by state legislatures. And so they actually go through the formal process of becoming a bill and then becoming a law. But some states have actually adopted them through governor executive orders. And the reason why it's important to understand how the law was enacted is because a governor's executive order can easily be rescinded when there's a change in governor. So in states that we think of that maybe are purple states--where there might be a split between the legislature and the governor in terms of maybe their political ideology--in some of those states that have shield laws under executive order, those are more likely to be rescinded if there is a change in administration.

What we have seen is that many of the state shield laws tend to mirror other states' shield laws, and as one state amends their shield laws to provide greater protections, we are seeing other states follow suit, usually through their legislative session. And so many of the states that were first to enact their shield laws, their shield laws in some way fell behind in terms of the broad protections because substates that enacted shield laws later in the process continued to add on protections. And so now we're seeing another wave of states that maybe might've been first to enact shield laws, to amend their shield laws, to make them more consistent with other states that have broader protections and then add on to that. So we're seeing this continuous cycle of broadening the scope of protection under the shield laws.

The texts themselves of many of the laws are quite similar. You might know that 21 states who support access to abortion have created a government-led non-partisan alliance known as the Reproductive Freedom Alliance, which is committed to protecting and expanding reproductive freedom within their states. And we understand that representatives from each of those states are collaborating and sharing their legal framework. And that's why you are seeing a lot of similarities in the shield laws, not only conceptually, but actual language from the shield laws is almost like being cut and pasted into each of the state's shield laws.

Sara Heath:

Yeah, that makes a lot of sense. I know I mentioned at the top of our episode today, but you guys put out a report of a survey of different types of shield laws, and I know in that report you guys outlined different types of shield laws. I was wondering if, for our listeners, you could explain those different types of shield law categories that you guys had in your report.

Alice Leiter:

Sure. And as Randi said, this research lent itself to categorization, given the similarities across many states. We broke them down fairly broadly into three main categories of types of protections. That's not to say that every law does not have its own nuances or potentially additional categories, but just for purposes of understanding the broad trends.

There tend to be state shield laws that will prevent state officials from furthering or supporting or assisting investigations or legal proceedings in other states based on violations of those state's abortion-related laws. So a state in which abortion is legal or abortion-related care is legal will not in any way assist a state where abortion or abortion care is criminalized from their investigation into what is in their state criminal conduct.

There are also laws that protect healthcare providers from professional consequences, licensure consequences, or medical malpractice insurance coverage losses due to their involvement in abortion care.

And then the third category would be laws that create additional protections for state residents or individuals that come to a state in which abortion is legal seeking care, giving them additional protections such as, for example, restricting from disclosure in a legal proceeding information regarding the fact that they sought or had an abortion. These disclosure restrictions are important because sensitive health information has certain protections in all states and specifying that abortion-related information cannot be disclosed even in a legal proceeding is an additional layer of protections that many of these shield laws provide. With respect to the first category, not to be exhaustive about what constitutes an investigation or a legal proceeding, but those, of course, come in a variety of shapes and sizes. So I just wanted to give a few examples of what that might look like.

State abortion shield laws often protect against non-fugitive extradition, which sounds very exciting. And really in practice, though, means that people who were in a state where an abortion is legal when they acted in a way that would be a crime in another state cannot be surrendered by the abortion protective state to the abortion criminalizing state when accused of providing or receiving reproductive healthcare that would be legal in the shielding state.

Another example might be that shield laws prohibit state officials from expending their own state resources, either funds or personnel time, in support of another state's investigation into the provision of reproductive healthcare that's legal in the shielding state. And often shield laws will limit state courts from giving effect to judgments that are entered elsewhere when the conduct of that judgment was lawful in the shielding state. So this, in effect, means that the judgment would have legal force in the anti-abortion state, but the shielding state would protect the provider or the recipient from those judgments.

Randi Seigel:

Alice alluded to this a little bit, but if a patient were to travel from a state which bans abortion to a state that has an expansive shield law, the state with the shield law, for instance, would not be able to send the patient back to a ban state for purposes of that ban state prosecuting a crime, for instance, against the patient for receiving an abortion. The patient's information related to receiving the abortion, for instance, may also not be permitted to be disclosed to law enforcement or other investigators in a state that bans abortion for purposes of investigating a crime that would be related to that patient's receipt of abortion care in the shield states.

Some states are even trying to make legal the provision of abortion care following a telehealth visit even if the patient remains in a ban state when they're receiving the abortion care. These laws may not actually be able to provide the protections they intend because it's really shifting how we think about regulating conduct because generally one state can't necessarily regulate the conduct occurring in another state. Prior to Dobbs, and for a while thereafter, it has always been the position that the patient's care is rendered in the state where the patient exists, not where the provider exists. So it remains to be seen if some of those laws that try to expand and protect conduct that sort of occurs outside of their borders, even in a virtual context, whether they can protect that conduct.

Thinking more about whether the shield laws actually do protect patient access to abortion care, I think the answer is yes, they certainly do protect patient's access to abortion care, and they reduce both the real and the perceived risks to the patient related to being prosecuted within their state if they travel outside of the state to receive an abortion. I think we likely think those protections are pretty broad and would, in general, protect the patient.

There are potentially some limitations to the protections under these laws or ways that someone in a ban state could still potentially target an individual who receives abortion care in a shield law state. We're not saying anything that isn't already out there because I would never want to provide any individual who is hostile to a pregnant person's right to abortion care, give them ways to circumvent the laws. But there is, for instance, a risk that a police officer who is in a shield law state might see an out-of-state arrest warrant for a homicide, for instance, that doesn't state that it's related to potentially a homicide statute related to abortion care. And that police officer may turn over evidence related to a homicide or information may be disclosed by an abortion care provider in a shield law state to a treating provider who resides in a ban state through the interoperable healthcare record system. And the records of that provider in a ban state might be able to be accessible to law enforcement within that ban state for purposes of conducting a criminal or civil investigation.

Some states picked up on some of these risk areas and are attempting to close these potential loopholes through additional legislation or protections through executive order.

Sara Heath:

Yeah. I know a lot of these shield laws, especially as we've already discussed, mentioned protections for providers. How do these protections for providers protect patient access to care too? How does that track?

Alice Leiter:

This gets a little bit at what Randi was saying earlier, that there are, of course--especially for the lawyers who are really looking at the specifics of the language--there are tangible protections.

There is also another layer of all of this, which is emotional and governed by attitudes towards seeking or providing care. And unfortunately, in the wake of Dobbs, this sort of culture of fear has been increased. So with respect to providers, there are tangible protections which I'll talk about, but also they increase the confidence that a provider might have in facilitating or providing abortion-related care, which in turn, of course, protects patient access. If all of the providers who are licensed to perform abortions were to say they weren't going to do it anymore or were doing it in a way that was more restrictive due to fear of prosecution or criminal investigation, that obviously would have a downstream effect on patient access.

So the states--and there are many of them--that have provider-specific protections in their shield laws tend to be specific to either licensing boards and licensure consequences or medical malpractice insurance. In general, state medical licensing boards will require that any of their licensees report any disciplinary action that was taken against their license regardless of where the basis of that discipline occurred. And often providers are licensed in multiple states. So this becomes quite relevant. The abortion shield laws that have provider-specific protections will protect licensees who are lawfully providing abortion care in the shielding state from professional discipline or other adverse actions against their license in a state where that care might be criminalized.

Similarly, a medical malpractice insurance carrier will usually require people to report adverse disciplinary or legal actions from any state in which they're licensed to that insurer. And the shield laws prohibit medical malpractice carriers in a state where abortion is criminalized from taking adverse action against a provider's insurance policy, their medical malpractice insurance policy, based on care that was lawfully provided in a shielding state. So these provisions protect providers who care for patients not only in their state, but patients who are traveling to a shielding state from those states with abortion bans.

Sara Heath:

I know we've talked a lot about some of those out-of-state legal investigation proceedings, and I noticed when I was reviewing the summary that those were very common. So I wanted to hear a little bit about some of the patterns that you guys identified.

Randi Seigel:

Sure. You are correct. Actually, almost all of the state shield laws, with the exception of the District of Columbia, at least at the time that we did our survey in September, contain protections related to out-of-state investigations and proceedings that relate to the ability to extradite an individual, the ability for states to use resources to investigate or cooperate in an investigation related to abortion care that was legally provided within the state. So that's the most common set of protections, and those protections generally protect almost everyone who might be implicated under a state's abortion law. So it generally protects providers, patients, as well as other individuals who might be involved in facilitating a pregnant person's access to abortion and protecting all of them from out-of-state investigations and proceedings.

The next sort of category of most commonly incorporated protections are the ones that Alice just mentioned. They aim to protect providers in part because providers felt nervous to provide abortion care even within their own state to any individual who might be coming from out of state where that state has abortion restrictions. And so there was a chilling effect on provider's willingness to provide services to those patients. And so many of the shield laws provide protections to the provider that prevent the disciplinary boards from taking disciplinary action against a provider for providing legally permitted abortion care that's provided consistent with the standard of care. So they're not going to prohibit a disciplinary action from me taking against a provider who provided substandard care or engaged in conduct that would be considered misconduct. But so long as the provider provided legally permitted abortion care in the state, they would be protected from disciplinary action, ranging from revoking license, limitations on license, suspension of their license.

They're also not allowed to in generally deny license for a new provider based solely on their provision of lawful abortion care or other types of services within the state. Some states, as Alice mentioned, also prohibit malpractice carriers from taking action against providers solely because they provide abortion care or prohibit commercial insurers from taking actions like terminating a provider from their provider network solely because they provide abortion care.

And then lastly, there's a category that we are calling additional protections for those who are seeking care in state. As we mentioned, all of the protections related to out-of-state investigations and proceedings generally protect individuals who are seeking care, but some states have passed additional protections related to those individuals, whether that's limiting further access to data or information related to their abortion care, or in some cases, providing them a right against what's called non-interference, which basically allows them to counter sue and seek and receive monetary damages for an action that someone takes against them trying to inhibit their ability to exercise their right to abortion care.

Sara Heath:

Yeah, and I wanted to talk a little bit about--I noticed that some of the shield laws protect access to protected healthcare services. Definitely not a lawyer over here, don't know all the different jargon or nuances and language. So I was wondering if you could explain to me what this means and how it's different from the abortion services and reproductive healthcare services that some of the laws protect, and how do these protections kind of affect the scope of a state's law?

Alice Leiter:

I have been waiting for you to ask a nerdy legal question, and I'm delighted that it's finally come. At the highest level--and, in some ways, it's a matter of semantics--it's how the states, when their legislative drafters are working, whether it's with the assistance of other states model legislations or not, how the states are going to categorize or phrase the healthcare services that they want to shield from hostile out-of-state actions.

Across all of these shield law states, abortions are included in the type of healthcare services that are protected. But as you mentioned, some states are specific, their shield laws are specific to abortion, and that's the word that is used. Some states talk about protections in terms of reproductive health services, which obviously involves a variety of services beyond abortion, but related to reproductive healthcare. And then some of them, as you mentioned, praise their protections in terms of protected healthcare services.

So in digging into the states that categorize their protections in terms of protected healthcare services--and there are a number of them--you find that often those are the states that have extended their protections beyond abortion, beyond even reproductive services into other potentially sensitive healthcare services, such as mental health services, services related to treating victims of domestic violence. And then what we really have seen in the most recent wave of abortion shield laws, as Randi mentioned: states are expanding and adding, and the most recent wave include in "protected healthcare services" gender-affirming care. Our survey did not dig into those states and break down the protections related to gender-affirming care, but we have footnoted those where those laws do encompass them.

And it's an interesting trend to see that in thinking about what types of services and what recipients of services need the most protection that we are seeing gender-affirming care be grouped in with abortion, given the sort of political climate or environment. And this survey does not just include a high-level summary of the types of categories, but it breaks down state by state the definitions of what's covered, where those coverage protections can be found in the state statutes and laws or executive order. And really does, for those of us who are the nerdy lawyers or interested, break down the differences in scope and definition and types of protected services.

Sara Heath:

Great. Thank you. And thank you both of our guests, Randi Seigel and Alice Leiter. And to our listeners, when you get a chance, please subscribe to our show on Spotify and Apple and leave us a review to help other listeners find our show. Thank you.