Following the overturn of Roe v. Wade in 2022, states supporting abortion have started creating laws to protect abortion providers whose services were affected by states that chose to protect the lives of the unborn. These “abortion shield laws,” many of which may be unconstitutional, prevent pro-life states from holding abortion providers accountable for violating health and safety standards. By enforcing these shield laws, a new conflict between states is brewing over the lives of unborn children and the structure of our government.
The Constitution’s extradition clause mandates that a person charged with a crime in one state who flees to another state must be handed over to the state where the crime occurred upon request. Shield laws in states like New York and Massachusetts skirt around this clause by not allowing the surrender of individuals who have not fled from the state seeking extradition. This includes individuals who provide abortion services through telemedicine to patients in other states, effectively protecting them from extradition requests.
Some anti-extradition laws extend protection beyond abortion providers. For example, New Jersey prohibits surrendering individuals who have traveled to the state to seek reproductive health care services allowed under New Jersey law. This misguided approach assumes pro-life states are criminalizing individuals seeking abortions out-of-state, perpetuating misinformation.
Media outlets like NBC News have misrepresented laws in states like Idaho, claiming the state restricts travel for abortions when, in reality, the law targets adults trafficking children across state lines to conceal abortions from parents or guardians. These misrepresentations contribute to the false narrative that pro-life states are extreme and cruel for trying to protect girls from abuse.
Impeding Prosecution
Abortion shield laws not only protect abortion providers but also make it nearly impossible to charge or prosecute them. Several pro-abortion states have banned court subpoenas related to abortion investigations from other states. Law enforcement agencies are instructed to cease cooperation with pro-life state counterparts on abortion cases. Existing subpoenas can be quashed if they violate the policy on “protected health care services,” a term often used to reference abortion and transgender surgeries.
Mary E. Harned, an associate scholar at the Charlotte Lozier Institute, notes that these laws make it extremely difficult for prosecutors in pro-life states to build cases against abortion providers who harm women or girls during abortions. Washington, for example, prohibits businesses from complying with out-of-state subpoenas related to abortion investigations, placing conscientious objectors to abortion in a challenging position.
Abortion shield laws also shield abortion providers from professional consequences. Some states prohibit medical boards from disciplining abortion providers for out-of-state actions, while malpractice insurance companies cannot raise premiums based on out-of-state sanctions. These protections even extend to genetic counselors, psychologists, and other healthcare professionals who might encourage patients to seek abortions.
Abortionists’ Relocation
Abortion shield laws incentivize abortion providers to move to pro-abortion states, where they can establish telemedicine services and underground networks to serve abortion tourists. Colorado’s Senate Bill 23-188 openly acknowledges this intention, stating that providers in states with abortion bans may relocate to states that protect their practices and values.
Some laws even enable abortion providers to retaliate against those who try to hold them accountable. A “clawback provision” allows providers to sue individuals who sue them for “tortious interference” with abortion, including women and girls harmed by abortions. This diminishes the deterrent effect of pro-life laws and prioritizes the interests of abortion providers over the safety of women and girls.
Abortion shield laws undermine interstate cooperation and prioritize the interests of the abortion industry over the safety of individuals. Pro-abortion states are becoming strongholds for abortion providers and destinations for abortion tourism. The battle for life and liberty is unfolding.
Guzi He is a J.D. candidate at the American University Washington College of Law. He is a legal fellow intern at Americans United for Life and a contributing writer for Merion West magazine.
