🥊 What is Ken Paxton doing in…Delaware?

How we can go beyond abortion shield laws

This week, we’ve got ideas for how to protect, and expand, access to reproductive healthcare…

• We ❤️ clinic access laws

• Data privacy is a reproductive rights issue

• Free speech? 👍 Doxxing doctors? 👎

But first, let’s talk about what Texas is doing…in blue states.

Last month, Texas AG Ken Paxton aimed the state’s anti-abortion law at Delaware, suing a Delaware nurse practitioner for prescribing abortion drugs to Texas residents. “The day of reckoning for this radical out-of-state abortion drug trafficker is here,” Paxton announced, adding “no one, regardless of where they live, will be freely allowed to aid in the murder of unborn children in Texas” (emphasis added). And just last week, a man in Texas used the state’s bounty hunter law to sue a California doctor for prescribing abortion mediation to his purported sexual partner.

This is what “leaving it to the states” looks like. When the Supreme Court handed down the Dobbs decision eliminating federal protections for abortion access, conservatives hailed it as a victory for states’ rights. But, of course, it was never about states’ rights — it was about extending conservative power and control, which knows no boundaries. In our last issue we talked about how red states use state laws to advance political and ideological agendas outside their borders. Consider this week’s edition on abortion access a case study.

And Texas isn’t the only state to play the game. In January, Louisiana AG Liz Murrill sought to extradite a California doctor who allegedly mailed abortion medication to a woman in Louisiana. It wasn’t the first time AG Murrill tried this gambit. Last year, she charged a New York provider for prescribing abortion drugs online to a Louisiana mother who ordered them for her pregnant child. And while California and New York have rejected Louisiana’s efforts to extradite those doctors, AG Murrill is attempting to compel their extradition in federal court. These zealots will stop at nothing.

And elsewhere:

• Idaho and Tennessee passed so-called “abortion trafficking” laws that make helping a minor get an abortion out-of-state without parental knowledge a crime, punishable in Idaho by two to five years in prison and in Tennessee by up to a year. Judges have upheld both laws, allowing them to be enforced in many instances.

• Alabama AG Steve Marshall threatened that anyone who helps a pregnant woman travel out of state to receive an abortion will be charged with felony conspiracy and accessory charges. A judge ruled that Marshall’s threats violate Alabamians’ constitutional rights to free speech and freedom of travel, but that doesn’t change the threat’s chilling effect.

• Missouri AG Catherine Hanaway took aim at nationwide access to medication abortion. In a multi-state challenge, she sued the FDA over its approval of a generic version of mifepristone, one of two commonly prescribed abortion drugs. The suit doesn’t stop there — it also asked the court to enjoin the distribution of abortion drugs through the mail altogether.

Even before Dobbs, red states were gearing up for the day Roe would fall and searching for nefarious ways to chip away at its protections. Thirteen states had enacted “trigger laws,” which effectively banned abortion the moment the ruling came down. And Texas took the cake when, pre-Dobbs, it went so far to enact a private right of action (SB8) allowing individuals to sue against anyone suspected of performing, inducing, or aiding an abortion.

If it wasn’t so evil, it’s the kind of aggressive preparation and offensive drive we’d tip our hats to. 🎩

Blue states have responded to an extent. Many have adopted so-called “shield laws” to protect abortion providers from out of state legal attacks, which, for the most part, have worked — so far. In New York, for example, a judge dismissed Texas’ attempt to enforce a civil judgment against a New York abortion provider, after a county clerk invoked the state’s shield law.

But we think it’s past time to turn up the heat. Blue states need to fight as aggressively to protect and expand abortion access as their red-state counterparts do to constrain it. Shields are great, but we should complement them with swords — both to make it easier for women to get the reproductive healthcare they need, and to punish the bad actors who stand in their way.

We’ve got a few ideas on how.

THE PUNCH LIST

• Fed up with Texas targeting abortion in your state? Target anti-abortion extremists in theirs. Ken Paxton is using Texas law to prosecute abortion providers in other states. So why don’t we turn the tables? Proposed legislation in New York would criminalize interference with, and intimidation of, the state’s telehealth providers. It could open the door for New York to prosecute anti-abortion extremists in Texas right back (including those sitting in the halls of the State Capitol bringing specious lawsuits). Not in New York? Push for a similar law in your state.

• Work for a state AG? Threaten to revoke the licenses of hospital systems that deny abortion in red states. Across the country, hospitals have denied stabilizing emergency care to pregnant women in red states, in violation of federal law — namely, the Emergency Medical Treatment and Labor Act (EMTALA). In some cases, women have died. Many of the hospitals that have violated EMTALA in red states are operated by systems that also have locations in blue states. That’s a hook. If your state requires hospitals to comply with federal law as a condition of its state license (spoiler alert, most do), then make sure they’re doing so, as Ken Paxton would say, “regardless of where they [operate].” Need some research? Hit reply — we have paper.

• Remember torts class? Use what you learned to punch back at the most egregious forms of harassment. Anti-abortion activists may be protected by the First Amendment to an extent — but the law draws a line. Recognized in all 50 states, the tort of intentional infliction of emotional distress occurs when an individual “acts in a manner that intentionally or recklessly causes another to suffer severe emotional distress, such as issuing the threat of future harm.” Protests are one thing. But doxxing or surveilling abortion providers or their patients? That’s nowhere in the Bill of Rights. And if there’s evidence of a coordinated effort? We might be looking at civil conspiracy.

• Concerned about data brokers and abortion access? Fight one, while protecting the other. Before Trump, the FTC sued a data broker to prohibit it from sharing or selling sensitive location data that could be used to track visits to reproductive health clinics. Don’t expect to see much of that from Trump’s FTC. Fortunately, though, states have their own consumer protection and data privacy laws. Washington’s My Health My Data Act, for example, restricts the sale or disclosure of sensitive reproductive and geolocation data. AG Nick Brown should take note, as the law also allows his office to seek up to $7,500 per violation. Other blue states should take on the data brokers that are undermining women’ s health as well.

• Want to really up the ante? After your counter-force actions are in order, consider counter-value deterrence. Tit-for-tat on abortion isn’t the only strategy; there are other ways to impose costs on the individuals and states that are wrongfully harassing abortion care providers in blue states. Red-state anti-abortion laws (and refusals to expand Medicaid) are driving up costs in other states. New York can assert its economic might. With liability insurance costs for blue-state abortion providers skyrocketing, let’s shift some of the burden. Gov. Kathy Hochul could instruct the Department of Financial Services to make New York insurance licensure subject to a requirement that the company’s practices in other states comport with New York abortion laws or explore new regulations that require such insurance providers to subsidize the cost increases (capping insurance rate increases experienced by these doctors accordingly).

THE CEO OF ABORTION IN AMERICA WOULD LIKE A WORD…

We pinged Lauren Collins Peterson, the CEO and co-founder of Abortion in America on fighting for abortion access:

“The insidious idea that we should leave abortion ‘up to the states’ might seem reasonable at first. But what happens when Louisiana tries to extradite a New York doctor for providing legal abortion care? Should we ‘leave it up’ to Arkansas — a state that already has the highest maternal mortality rate in the country — to let women like Emily Waldorf die because of an abortion ban so vague and confusing that doctors don’t know whether or not they’re allowed to save a patient’s life? And what does it all mean for people who, for any number of reasons, can’t travel to another state to get health care that should be available in their community?

“We’re living through a reproductive health crisis. We have to go on offense with every tool in our toolbox — including organizing, public awareness campaigns, proactive legislation, and creative digital outreach. And when all else fails: Sue the bastards.”

FIGHTING FIRE WITH FIRE

🥊 Pregnant women in Idaho are still protected by EMTALA, for now. Last year, St. Luke’s Health System, represented by Jenner & Block, sued the state of Idaho to resolve the conflict between Idaho’s abortion ban and EMTALA’s requirements for emergency care for pregnant women. In March, a judge issued a preliminary injunction, allowing EMTALA’s protections to stand while the case is litigated.

🥊 Mayday issues an S.O.S. in New York. After Mayday Health placed advertisements for abortion resources in 20 South Dakota cities, South Dakota AG Marty Jackley issued a cease-and-desist letter. Mayday, based in New York, responded by suing in New York District Court for a temporary restraining order against Jackley, claiming the ads are protected by free speech. In January, the TRO was granted and further arguments are pending.

🥊 Eyes on Arkansas. Amplify Legal, the recently founded litigation arm of Abortion in America, hit the ground running with a lawsuit against the state of Arkansas. The suit, filed on behalf of four Arkansas women who were blocked from getting abortions under the state’s near-total ban (as well as an OB-GYN), argues that the ban violates the state’s constitution.

🥊 Stay golden. Remember those lawsuits against abortion providers in blue states we mentioned? They are running up against forceful resistance. California Gov. Gavin Newsom announced the state would not comply with Louisiana’s extradition request, citing an executive order he signed. New York Gov. Kathy Hochul likewise refused to sign Louisiana’s extradition request for a New York doctor, making it quite clear where she stands: “Not now, not ever.” 👏

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Counter Punch is a collaboration between Salt River Valley Project and Evergreen Legal — two organizations that believe punching back is the policy playbook this moment demands. It’s how we fight a rigged system, make courage contagious, and deliver for people against the leaders holding them down.