The Economist reports about state shield laws that protect doctors in the state from prosecution for sending FDA-approved abortion pills to states that have banned abortions:
[A hypothetical teenage] patient [in rural Texas] is pregnant and wants an abortion. For years, she’s been told that it is illegal in her state, with almost no exceptions. But then, with a bit of Googling, “you find out that there’s this group of people in Massachusetts that will send you FDA-approved medications in the mail.” The ordeal will be over in a few days and will cost $5. “It sounds absolutely bananas, right?” she asks “How could it be legal? How could it be safe?”
Yet it is safe and legal. Dr Foster is one of the founders of the Massachusetts Medication Abortion Access Project (the MAP), a telehealth abortion provider outside Boston. It sends between 2,000 and 3,000 packages of abortion pills a month, 95% of them to states where the procedure has been banned. Massachusetts is one of eight states that protects abortion providers from criminal charges and civil litigation, regardless of where pills are sent (see map). Such “shield” laws are legal novelties that have sprung up since 2022, when the Supreme Court overturned Roe v Wade. In the first six months of 2024, nearly 10,000 abortions took place each month under these provisions—amounting to 10% of all legal abortions in America.
Anti-abortion activists are incensed by the workaround.
Doctors who send abortion pills to states with abortion bans face arrest if they leave their home states. That is a significant downside of practicing abortion telemedicine. Texas has filed suit against a New York doctor, but New York’s governor Kathy Hochul refuses to extradite the doctor and courts in the state are not enforcing Texas’ $113,000 penalty. Texas is claiming that “New York is shredding the constitution.”
Sooner or later this will wind up at the USSC. If that court decides that abortion telemedicine is illegal under federal law, e.g., the Comstock Act, an 1873 anti-obscenity law, doctors who practiced abortion telemedicine will probably be targeted for prosecution by red states with abortion bans and laws against abortion telemedicine.
Shield laws are causing major problems in terms of respect among states for judgments in one state being honored by other states. Shield laws conflict with long-standing interstate cooperation, such as extradition agreements and mutual recognition of court decisions. By refusing to honor subpoenas, arrest warrants, or civil lawsuits from anti-abortion states, shield laws risk eroding the constitutional framework that leads states to respect each other's laws and judicial processes. Also, some states might adopt reciprocal measures targeting other issues, escalating partisan "arms races" among states with contradictory laws. The loss of trust between states would probably further weaken national unity and interstate collaborative governance.
What a mess. Abortion is tearing this country apart. Sadly, it is for no good reason at all. None. National abortion rights never forced even one pregnant girl or woman to get an abortion. Not one. But now, abortion ban laws are forcing tens of thousands of girls and women to have a child they do not want, destroying or disrupting many of those people's lives or future prospects.
That is Christian nationalist theocracy in action, plain and simple.
