How Pro-Abortion States Are Blocking Other States From Protecting The Unborn

So-called ‘abortion shield laws’ will prevent pro-life states and their citizens from holding abortionists accountable.

By Guzi He, published May 13, 2024, The Federalist

Since the fall of Roe v. Wade in 2022, pro-abortion states have begun devising measures to shelter abortionists whose operations were hampered by states that chose to protect unborn life. These so-called “abortion shield laws” — many of which are likely unconstitutional — will defeat any ability for pro-life states and their citizens to hold abortionists accountable for violating their health and safety standards. Diligently enforced, shield laws invite a new war between the states over not just the lives of unborn children, but also our system of government.

The extradition clause of the Constitution requires that “[a] Person charged in any State with Treason, Felony, or other Crime, who shall flee from Justice, and be found in another State, shall on Demand of the executive Authority of the State from which he fled, be delivered up, to be removed to the State having Jurisdiction of the Crime.” In short, a state cannot turn down another state’s request to extradite fugitives within its borders.

Shield laws, such as those in New York and Massachusetts, hug the edges of the extradition clause by prohibiting the surrender of non-fugitives. Accordingly, a person who promotes abortions while physically present within a pro-abortion state cannot be handed over to a pro-life state in which the abortion has occurred. After all, he has not actually fled from the pro-life state. As The New York Times points out, such laws de facto protect those who prescribe abortion pills through telemedicine to women out-of-state.

Several anti-extradition laws also indicate that abortionists are not their only concern. New Jersey protects those “charged in [another] state whose executive authority is making the [extradition] demand with … traveling to obtain reproductive health care services that are permitted under the laws of this State.” Language like this appears to falsely assume that pro-life states are criminalizing women and girls for seeking abortions out-of-state, concerns that reflect the media’s narrative distortion.

NBC News, for instance, reported in April 2023 that “Idaho becomes one of the most extreme anti-abortion states with law restricting travel for abortions.” Yet, the law in question does not actually criminalize out-of-state travel. It merely criminalizes adults who transport children outside of Idaho “with the intent to conceal an abortion from the parents or guardian.” In that sense, anti-extradition laws — by covering abortion seekers who are at no risk of going to jail — are part of a broader campaign to smear pro-life states as cruel and extremist simply for trying to protect girls from adult abusers who often force them to undergo an abortion to hide the abuse.

Making Prosecution Impossible

Not content with harboring abortionists, abortion shield laws also make it impossible to charge or prosecute them in the first place. Several pro-abortion states have banned their courts from issuing subpoenas following another state’s abortion-related investigations. State law enforcement agencies have been ordered to stop working on abortion cases with their counterparts from pro-life states. Existing subpoenas can be quashed if a state court finds that they violate public policy regarding “protected health care services,” a euphemism for abortions and transgender surgeries.

“It will be virtually impossible for a prosecutor or civil attorney in a pro-life state to build a case against an abortionist who injures a woman or girl during a surgical or drug-induced abortion when the state where the abortionist lives will not cooperate,” observes Mary E. Harned, an associate scholar at the Charlotte Lozier Institute. 

On top of that, Washington even bans businesses from complying with subpoenas, warrants, and other court orders issued as part of an out-of-state abortion investigation. This represents an unprecedented attack on private employers who have conscientious objections to abortion, as the right to do business is made contingent upon complicity in the abortionist agenda.

Meanwhile, abortionists are given a comfortable life thanks to abortion shield laws that remove any negative professional consequences. Some states prohibit state medical boards from disciplining abortionists based on abortions performed out-of-state. Malpractice insurance companies are not allowed to impose higher premiums on abortionists despite the risk of out-of-state sanctions. These privileges are often extended to genetic counselors, psychologists, and other healthcare professionals who might push their patients to get an abortion.

Abortionists Will Relocate

Given the many benefits abortion shield laws offer, one can expect abortionists to migrate en masse to pro-abortion states. From there, they will set up telemedicine hubs and “underground railroads” that serve abortion tourists.

The architects of abortion shield laws openly admit that they intend for this to happen. For example, Colorado’s Senate Bill 23-188 states that “reproductive and gender-affirming health-care providers in states with abortion and gender-affirming health-care bans will want to relocate to states that protect their practice and values, thereby becoming an important part of Colorado’s health-care infrastructure.”

Ultimately, certain abortion shield laws enable abortionists to enact vengeance upon anyone who seeks to hold them accountable for their malfeasance. A “clawback provision,” as The Hartford Courant labels it, typically creates a new right of action for “tortious interference” with abortion.

As such, an abortionist held civilly liable in a pro-life state can sue the original plaintiffs for damages on the grounds that the latter had sued him first. This includes women and girls who suffered abortion-related injuries. When abortionists can recover litigation costs from their victims, the deterrent effect of pro-life laws is all but dead.

Abortion shield laws put the commercial interests of abortionists ahead of the safety of women and girls, not to mention the damage done to long-standing traditions of interstate cooperation. Pro-abortion states are turning themselves into impregnable fortresses for the abortion industry and havens for abortion tourism. The battle for life and liberty is just beginning.

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.