Understanding Shield Laws

Abstract

In anticipation of extraterritorial application of antiabortion laws, many states have enacted laws that attempt to shield abortion providers, helpers, and patients from civil, professional, or criminal liability associated with legal abortion care. This essay analyzes and compares the statutory schemes of the seven early adopting shield states: California, Connecticut, Delaware, Illinois, Massachusetts, New Jersey, and New York. After describing what the laws do and how they operate, we offer reflections on coming disputes, areas of legal uncertainty, and ways to improve future shield laws.

Introduction

In June 2022, the Supreme Court eliminated the constitutional right to pre-viability abortion in Dobbs v. Jackson Women’s Health Organization. In response, abortion bans from the earliest moments of pregnancy are in effect in roughly a third of the country. ¹ Some states with abortion bans may seek to criminalize or impose civil liability on out-of-state abortion providers who help their residents. ² The threat of cross-border punishment already has altered the abortion care offered to traveling patients, particularly those seeking medication abortion, given that some or all of it can be taken in the patient’s antiabortion state. ³

In anticipation of extraterritorial application of antiabortion laws, many states have enacted laws that attempt to shield abortion providers, helpers, and patients from civil, professional, or criminal liability associated with legal abortion care. ⁴ One impetus for this type of legislation was an article written by three of this essay’s authors, who played a role in drafting the first of these statutes in Connecticut ⁵ and advocating for new laws elsewhere. ⁶ This essay analyzes and compares the statutory schemes of the seven early-adopting shield states: California, Connecticut, Delaware, Illinois, Massachusetts, New Jersey, and New York. ⁷ After describing what the laws do and how they operate, we offer reflections on coming disputes, areas of legal uncertainty, and ways to improve future shield laws. Since the completion of this essay, the number of states with sheild laws has more than doubled, and some states have stregnthed their sheild protections. The essay is current through February 2023.

I. Common Shield Provisions

Every state’s shield law is unique, but the statutes share core commonalities. We describe common provisions in depth below and conclude with a state-by-state comparison.

Another challenge in the post-Dobbs environment is that people in states with abortion bans — as distinct from government actors —may try to sue abortion providers, helpers, or seekers in other states. This could happen through a law like Texas’ SB 8 or a more common tort, such as wrongful death. Imagine an unhappy relative suing an abortion provider for wrongful death after an abortion. If providers faced the possibility of civil liability for caring for a patient who has traveled to their state, they might not take the risk of caring for those travelers.

A . Defining Protected Care

All seven states include a broad definition of reproductive healthcare and explicitly name abortion as a covered service. But there are a few differences. For example, California, Illinois, and Massachusetts also include gender-affirming healthcare in their protections along with reproductive healthcare, while the others do not. Moreover, Massachusetts was the first state to specifically define “legally protected healthcare” to include reproductive healthcare and gender affirming care that occurs “regardless of the patient’s location.” ⁸ This definition protects cross-border care provision notwithstanding a background rule in telehealth that the location of care will be where the patient is. This will be discussed in more depth in subsection J.

B . Prohibiting Non-Fugitive Extradition

Perhaps the most alarming possibility in a country where abortion is legal in some states but a crime in others is that states where abortion is banned might try to apply their criminal law across borders. A state like Georgia, defining personhood at conception, ⁹ might claim that a provider in a state where abortion is legal who provides an abortion for a Georgia resident has violated Georgia’s law by killing one of its citizens (the fetus). Georgia would have to ask the state in which the care occurred to extradite the provider, because a criminal prosecution cannot take place without the physical presence of the accused.

Six of the seven states ensure protection from extradition for abortion care that was legal in their state; California does not, although an executive order accomplishes this goal. Though the Extradition Clause of the Constitution ¹⁰ requires states to extradite in some circumstances, it only applies when the accused was physically present in the state requesting extradition at the time of the alleged crime and then subsequently fled to the other state. ¹¹ Because people can commit crimes even when they are not present in a state (by the mail or phone, for instance), states have elected to pass statutes allowing for extradition even if the accused was never in the requesting state. Shield laws provide an exception for lawfully provided reproductive healthcare that complies with the constitutional minimum. ¹² New York added an additional procedural requirement to its extradition shield, with a provision stating it will not extradite someone for providing an abortion “unless the executive authority of the demanding state” alleges in writing that the provider provided the abortion in that state and then fled. ¹³ Connecticut, Delaware, Illinois, Massachusetts, and New Jersey protect not only providers, but also helpers and recipients of abortion. ¹⁴

C . Interstate Witness Protection

There are also concerns that providers and helpers could be forced to participate in abortion-related litigation or prosecution from other jurisdictions through a variety of different procedural mechanisms, such as subpoenas, discovery requests, or summons. Almost every state has a version of the Uniform Interstate Depositions and Discovery Act, which creates a process for civil litigants to engage in discovery across state lines. ¹⁵ Similarly, every state has a version of the Uniform Act to Secure the Attendance of Witnesses From Without a State in Criminal Prosecutions, which does the same for criminal cases. ¹⁶ These provisions allow an attorney working on a case in one state to ask the courts of the state where the witness resides to order the witness to participate in the other state’s legal proceeding. These laws reflect a general preference for interstate comity and cooperation. Shield laws carve out exceptions for protected reproductive health care from these laws. ¹⁷

Shield laws apply slightly differently to summons and subpoenas. Though terminology can vary depending on the jurisdiction, a summons is a legal instrument to start a proceeding by commanding a person to appear in court. Summons may be used in either civil or criminal cases. Connecticut, Delaware, Illinois, Massachusetts, and New York protect their residents from being summoned to appear in another state’s proceeding concerning the provision of legal reproductive healthcare or abortion. ¹⁸

Connecticut, Delaware, and Illinois limit these protections to residents who have been summoned for information or testimony related to antiabortion criminal laws. Massachusetts, on the other hand, does not make a distinction between civil and criminal law, prohibiting any courts of the Commonwealth from requiring “a person who is domiciled or found within this commonwealth” to testify in the proceedings of another state that concern reproductive healthcare lawful in Massachusetts. ¹⁹ New York, likewise, does not apply a civil-criminal distinction, though its provision appears as an amendment to the state’s civil practice laws. There, an in-state witness may not be compelled to testify “in connection with an out-of-state proceeding” specifically related to abortion unless that conduct would be punishable in New York, the action sounds in tort or contract law, or was brought by a patient who themselves received reproductive healthcare. ²⁰

Distinct from a summons, a subpoena is used to compel someone to testify or produce evidence in a proceeding that has already begun. California and Delaware prohibit officers of their courts from issuing a subpoena in connection with an out-of-state lawsuit regarding lawful abortion provision. ²¹ California also prohibits its healthcare providers from responding to an out-of-state subpoena relating to a “foreign penal civil action” seeking to enforce another state’s law that would result in disclosing confidential information about a person seeking lawful reproductive healthcare. ²² Connecticut, Illinois, and New York forbid the officers of their courts from issuing subpoenas under comparable circumstances. ²³ Each state exempts actions that sound in tort or contract law. Illinois and Massachusetts allow anyone aggrieved by out-of-state litigation to move to modify or quash a subpoena issued in conjunction with that litigation. ²⁴

While California does not explicitly prohibit another state from calling someone who participated in abortion care in California to testify as a witness, it prohibits issuing subpoenas that would result in disclosing confidential information about a person seeking reproductive care. ²⁵ New Jersey does not explicitly shield its residents from summons or subpoenas.

D . Prohibiting Expenditure of State Resources on Another State’s Investigation

States usually cooperate with one another in interstate investigations as a matter of courtesy. Shield laws prohibit state and local law enforcement and other agencies from cooperation as related to protected abortion care. California, Connecticut, Massachusetts, New Jersey, and New York prohibit the expenditure of state resources in support of another state’s investigation into the provision, receipt, or support of protected care in the shield state. ²⁶ This includes employee time, meaning that no state officials can work on an out-of-state investigation into care that was lawful in the state. New York also prohibits its police officers from cooperating with out-of-state investigations seeking to criminalize a lawful abortion. ²⁷

Delaware and Illinois do not explicitly prevent the expenditure of state resources on another state’s investigation. Though some of these protections might be implied through protections for abortion-related information, the absence of this provision could be exploited by antiabortion police and other governmental employees within the shield state.

E . Limiting Adverse Professional Licensing Consequences

One way to discourage abortion provision is to threaten providers’ healthcare licenses. Regulatory bodies require licensed providers to report any discipline against them in any other state where they are licensed. If an entity in an antiabortion state begins an investigation, lawsuit, or licensing inquiry based on legal abortion care in another state, that out-of-state action could be reported to the abortion-supportive state and become the basis for disciplining the provider’s license in that abortion-supportive state.

Six of the seven shield states reviewed here provide professional and licensing protections for healthcare providers who might suffer consequences for caring for patients from other jurisdictions; Connecticut does not do so expressly. California, Delaware, Illinois, Massachusetts, New Jersey, and New York prevent the revocation of a license for providing abortion or reproductive healthcare to a person who resides in an antiabortion state. ²⁸

Who is covered under these licensing statutes varies across states. New Jersey does not directly name the types of providers covered, but broadly defines “reproductive healthcare services” to include “all medical, surgical, counseling, or referral services.” ²⁹ New York takes a similar approach, defining “healthcare practitioner” to mean “a person who is licensed, certified, or authorized under this title and acting within their lawful scope of practice.” ³⁰ California, Delaware, Illinois, and Massachusetts name the various providers covered by the statute. California protects physicians, surgeons, midwives, nurse practitioners, and physician assistants. Delaware protects physicians, nurses, and physician assistants. In Massachusetts, physicians, physician assistants, registered nurses, psychologists, social workers, and pharmacists are protected. Illinois protects the same group plus behavioral analysts, marriage and family therapists, professional counselors, surgical assistants, and genetic counselors.

F . Insurance Protections

Providers’ malpractice insurance might be impacted by out-of-state actions, even if they are engaged in fully legal care in their own jurisdiction. Delaware, Illinois, Massachusetts, and New York prohibit medical malpractice insurers from taking adverse action for providing reproductive healthcare that is lawful in the state. ³¹ Notably, both Delaware and New York expressly extend these protections to healthcare professionals who prescribe medication abortion to an out-of-state resident “by means of telehealth.” Delaware lists increasing premiums and “other adverse actions.” Illinois and New York enumerate a non-exhaustive list of possible adverse actions, including refusing to renew a contract, reporting the practices of a provider that might violate another state’s laws, and charging an increased amount for the insurance coverage.

Massachusetts uses slightly different language to accomplish a similar goal. Medical malpractice insurers may not discriminate against a provider or adjust a provider’s premium if they offer reproductive care that is lawful in Massachusetts but unlawful in another state, regardless of whether the other state creates liability for the provider and/or if “abusive litigation” against the provider results in a judgment. ³²

G . Confidentiality Protections

Abortion providers have long been targets of attack and victims of murder, assault, arson, and harassment. ³³ As clinics close in states with abortion bans, it is imperative to protect providers in the states where abortion remains legal. Similarly, patients, who face increasing risks when they return home, should also be protected to the best of a state’s ability.

Connecticut, Delaware, and New Jersey prevent healthcare providers from disclosing communications or information obtained through medical examinations about the people seeking those services unless they have provided written consent otherwise. ³⁴ These three states have exceptions; they permit disclosure without authorization when the information is pursuant to the laws of their state, when providers communicate with their attorney or insurer, to furnish information for a state investigation, or if abuse is suspected. California is unique among the seven shield states in that its confidentiality protections target health insurers. Under this shield provision, health insurers must take several steps to protect the confidentiality of “sensitive services,” which is defined to include reproductive healthcare. ³⁵ An insurance company’s failure to comply with these provisions will result in a civil penalty.

Massachusetts and New York have focused on a different approach to protecting confidentiality. Under New York law, “reproductive healthcare services providers, employees, volunteers, patients, or immediate family members of reproductive healthcare services providers” are newly part of the state’s “address confidentiality program.” ³⁶ Now, along with victims of intimate partner violence, human trafficking, and sexual assault, this group will be able to take advantage of the state’s confidentiality program. Massachusetts offers similar protection. ³⁷

H . Choice of Law and Out-of-State Judgments

Another challenge in the post-Dobbs environment is that people in states with abortion bans — as distinct from government actors — may try to sue abortion providers, helpers, or seekers in other states. This could happen through a law like Texas’ SB 8 or a more common tort, such as wrongful death. Imagine an unhappy relative suing an abortion provider for wrongful death after an abortion. If providers faced the possibility of civil liability for caring for a patient who has traveled to their state, they might not take the risk of caring for those travelers. ³⁸

For this reason, shield laws prohibit recognition of out-of-state civil law for choice-of-law purposes. California, Delaware, and Illinois forbid their courts from applying the law of a state that recognizes a cause of action for care that would be lawful in those states. ³⁹ This means that if a litigant were to sue a resident of a shield state in that state’s court based on a theory that those residents violated an antiabortion state’s law, the law of the antiabortion state would not be the basis of the claim.

If the litigant sues the person from the shield state in the antiabortion state’s court, however, the case may proceed to judgment. Unlike a criminal prosecution, civil litigation can proceed without a defendant and a default judgment could be entered against the defendant without them appearing in court. To combat this problem, states have crafted different solutions. California courts will not recognize or enforce the out-of-state judgment because it violates state public policy. ⁴⁰ Illinois and Massachusetts will not give any force or effect to a judgment “issued without jurisdiction” — tracking one of the well-recognized exceptions to the Full Faith and Credit Clause. ⁴¹ Connecticut, Delaware, New Jersey, and New York would allow the judgment to take effect but have crafted a different solution to the problem, discussed below.

Indeed, the existence of shield laws might discourage states from trying to apply their existing antiabortion laws out of state and disincentivize state legislators from enacting new laws that specifically apply to extraterritorial conduct.

I. Clawback Lawsuits

Given that states have limited authority to refuse to recognize a final out-of-state judgment, several have taken a different approach: a new cause of action for residents who have been the target of civil litigation in another state related to protected care in the shield state. Connecticut, Delaware, and Illinois create a cause of action for those in their states who have had a judgment entered against them in another state for covered reproductive healthcare services. ⁴² This is often called a “clawback provision,” in which the person may seek to recover damages from the party who has entered or sought to enforce the judgment against them.

California, Massachusetts, and New York have somewhat more robust protections because they do not require a judgment to have been entered in another jurisdiction; rather, the cause of action is tied to an attempted legal interference with protected care. California permits anyone “whose reproductive rights are interfered with by conduct or by a statute, ordinance, or other state or local rule, regulation or enactment” to “bring a civil action” for damages. ⁴³ Massachusetts creates a cause of action for damages against anyone who “engages or attempts to engage in abusive litigation that … interferes” with reproductive healthcare delivery or provision. ⁴⁴ And New York establishes a claim for “unlawful interference with protected rights” when a person or party in any court — including federal court — brings a civil or criminal action for reproductive healthcare services protected in New York. ⁴⁵

The causes of action created by Connecticut, Delaware, Illinois, Massachusetts, and New York all cast an inclusive net around who can bring the lawsuit; their protections cover those who receive, provide, or assist in the receipt or provision of abortion and reproductive healthcare. California’s statute is less clear on the point; it covers “a party whose reproductive rights are protected by this article and whose reproductive rights are interfered with.” ⁴⁶

New Jersey is the only shield state that provides no explicit cause of action for its residents who are the subject of out-of-state civil litigation associated with lawful abortion care, leaving its providers, helpers, and abortion seekers vulnerable.

J. Telehealth for Patients Across State Lines

The above discussion of shield provisions has presumed that those who provide and receive reproductive healthcare are both in the shielding state or that, with telehealth, the provider has a license to practice in the state where the patient is. Nothing in the existing shield laws alters the background rule of telehealth that a provider must be licensed to practice in the state where the care is provided — i.e., the state where the patient is located. Therefore, if the patient is located in an antiabortion state where the provider is presumably not licensed, the provider would be violating their legal duty not to practice medicine without a license.

State Shield Law Summary Chart

The first state to explicitly attempt to shield interstate telehealth abortion care was Massachusetts. So long as the telemedicine provider is in Massachusetts, they are shielded when providing “legally protected healthcare…regardless of the patient’s location.” ⁴⁸ This provision attempts to mitigate some of the risks associated with U.S. based providers shipping medication abortion into states with abortion bans. It is unclear at this point in time whether other parts of Massachusetts law separate from the shield law would nonetheless prohibit Massachusetts licensed providers from providing care in this situation. ⁴⁹

II. The Significance and Challenge of Shield Laws

The purpose of this essay is to map a moment in post-Dobbs abortion law: the emergence of shield laws. Though its primary aim is descriptive, we conclude with a brief analysis of those laws’ implications and import.

In the absence of a constitutional right to abortion, shield laws respond to reasonable fears that abortion-hostile states will extend their reach beyond state borders. But by their very construction, shield laws challenge the convention of comity and cooperation between states. In general, when states share policy objectives, they cooperate with one another because it is mutually beneficial. Moreover, even when states do not share policy objectives, cooperation can be beneficial because states anticipate needing cooperation in the future for their own benefit. However, states do not need to cooperate when their policy goals differ. Quite the contrary: our federalist system is one that allows — and even enables — considerable variety among state laws.

When states do not share policy goals, as long as certain constitutional provisions (such as the Full Faith and Credit Clause and the Extradition Clause) are followed, states have forgone cooperation in favor of their own policies, just as one-third of the country has in banning abortion. After all, with the exception of Massachusetts’s telehealth provision, shield laws only come into play if antiabortion states try to prohibit an activity that occurs outside their borders. And even if interstate conflict becomes a reality, shield laws are not impenetrable. No shield law can stop an antiabortion state from exercising jurisdiction over someone who, in criminal matters, physically enters the antiabortion state or who, in civil cases, has close enough ties to the state. State courts can also enter default judgments against an out-of-state provider if a court can establish jurisdiction and amass evidence without the defendant’s involvement. Under many shield laws, the provider will not be forced to participate and might be able to recoup the loss, but that will not invalidate the original judgment.

That said, states seeking to pass shield laws in the future might keep a number of early lessons in mind. For one, shield laws should make clear that their protections trump conflicting in-state laws and that statutes apply only to reproductive health care services. This issue is salient in the context of telehealth, where there may be conflicting guidance about legally authorized care: one part of state law requires providers to be licensed where they provide care, but the shield law possibly covers telehealth providers who care for patients in states where the provider is not licensed.

The exceptional treatment of telehealth for abortion is by design; these laws do not seek to alter default healthcare rules for a variety of important reasons. Broader changes might evoke strong resistance from actors in the insurance and telehealth space. However, shield laws could contain a provision that makes clear they trump conflicting laws — otherwise, general telehealth rules could contradict the provisions of a shield law. This is particularly important as states join interstate licensing compacts that can have provisions on disciplinary reciprocity that conflict with shield laws. As of yet, the shield laws contain no such provision.

Similarly, shield laws could better protect abortion-related information and records. ⁴⁹ Shield laws fail to account for interoperability laws that facilitate automatically sharing electronic medical records across institutions, potentially disclosing abortion care without involving state actors. States could require, for instance, that providers, insurers, and other actors only share abortion-related records after obtaining specific consent from a given patient. ⁵⁰ Malpractice protection provisions should not just protect adverse action taken against a policy but also extend to initial policy denials of providers caring for patients from or in other states. Finally, shield laws might contemplate disciplinary action against people who knowingly violate the shield law by aiding another state’s attempt to punish or investigate abortion care that was lawful in the shield state. To date, Illinois is the only state with such a provision. ⁵¹

Outside of their direct impact, shield laws have the potential to serve as a counteracting force to those states that might otherwise seek to extend their jurisdiction beyond their borders. Indeed, the existence of shield laws might discourage states from trying to apply their existing antiabortion laws out of state and disincentivize state legislators from enacting new laws that specifically apply to extraterritorial conduct. One might hope that shield laws will never be needed by providers, helpers, and patients because antiabortion states will not try to impose their policies across state lines — a possibility we would count as a success.

Conclusion

Each of these seven states is a pioneer in the rapidly evolving post-Dobbs landscape. As of publication, several more states have passed shield laws. These new laws are on a collision course with any state that seeks to apply abortion restrictions extraterritorially to providers, patients, and those who help them. Though these laws challenge baseline principles about interstate comity, they respond to the abortion care crisis Dobbs unleashed.