Using Shield Laws to Protect Interstate Patient Access to Abortion Care

November 13, 2023 - In the aftermath of the 2022 Dobbs vs. Jackson Women’s Health Organization Supreme Court decision, it wouldn’t be uncommon to see interstate patient access to abortion care.

The ruling, which virtually upended the precedent set by Roe v. Wade, left the decision of abortion access up to the individual states, creating a variable landscape for abortion access across the nation.

According to the website abortionfinder.org, 14 states completely ban abortion. Thirty states ban abortion after a specified point in pregnancy, in some cases six weeks into pregnancy. Meanwhile, 13 states require a person seeking an abortion to wait a specified period of time before their abortion, and 22 states require some type of parental involvement for a minor to get an abortion.

Those laws haven’t exactly eradicated abortion access. Instead, many patients are traveling out of state to get an abortion.

To be sure, states with near-total abortion bans saw an almost complete eradication of abortion access. According to the Guttmacher Institute, the states with virtual abortion bans barely had any procedures completed in them by June 2023. That compares to 2020, when around 12 percent of all abortions nationwide were completed in states that now ban abortion.

But even though abortion was essentially impossible to access in ban states, the rate of abortion access went up in abortion-legal states, according to Guttmacher.

For example, in abortion-protected Colorado, the number of abortions completed increased by 89 percent in 2023 compared to a comparable period in 2020. That’s compared to an 8 percent increase in abortion access in Colorado between 2017 and 2020.

That’s likely because patients in restrictive states traveled to abortion-protected states like Colorado to get the procedure.

But making that trip carries burden and risk, most experts acknowledge. Long travel times for healthcare have long been seen as an access barrier because travel can be extremely costly. And that’s not to mention the legal liability that’s at hand. A patient traveling from an abortion-ban state into an abortion-legal state may fear prosecution for accessing the procedure, which could ultimately discourage access.

That’s where shield laws come in.

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Shield laws are designed to protect a patient or anyone else involved in an out-of-state abortion. But shield laws, plus the abortion restriction laws they are designed to address, aren’t entirely simple, according to legal experts from Manatt Health. In a recent episode of Healthcare Strategies, Manatt partner Randi Seigel and council Alice Leiter outlined the legal landscape for shield laws as of September 2023 and their potential for protecting patient access to abortion.

“Shield laws are not necessarily a one-size-fits-all all term, and they, of course, vary by state,” Leiter said in the episode. “But at their core, all abortion shield laws are designed to protect abortion seekers, providers, or both in states where abortion remains legal from actions by states in which abortion is not legal.”

States in which abortion is legal have enacted these laws, passed either by state legislatures or enacted by executive order, to create an added layer of protection for abortion access. These laws make it so that not just an abortion-legal state’s own residents can access the procedure, but individuals traveling from out-of-state can do so, too, without repercussions for themselves or others involved in completing the abortion.

According to Leiter and Seigel, who in September authored a nationwide survey of the different types of shield laws that were in effect up until that point, there are a few common provisions across individual state shield laws.

Foremost, shield laws protect people involved in an abortion from prosecution or investigation “based on violations of abortion-related laws,” according to Manatt. Said otherwise, a state with a shield law protects patients from investigation or prosecution from their home state based on their home state’s abortion-related laws. This provision oftentimes includes the provider and other folks involved in the abortion, too.

Next, many shield laws protect healthcare providers from professional consequences because they administered an abortion. This includes loss of medical licensure or dings against the provider’s medical malpractice insurance coverage.

That’s an important aspect of a shield law because it frees providers of the fear of civil or criminal prosecution or even punitive actions against their professional credentialing.

“If all of the providers who are licensed to perform abortions were to say they weren't going to do it anymore, or were doing it in a way that was more restrictive due to fear of prosecution or criminal investigation, that obviously would have a downstream effect on patient access,” Leiter said.

The final aspect of many shield laws refers to patient health data and information. These laws protect patients and providers from disclosure of data or information that would be used in a legal proceeding.

Of course, there can be some state-to-state variation. Not every state has adopted the same set of shield law provisions, Leiter and Seigel stressed, with some laws being more comprehensive than others. Seigel pointed out that some shield law early adopters are now amending their legislation as they see the extra protections other states have added.

Shield laws are arguably the dark horse in abortion access protection. While abortion funds do important work of helping patients in need access the procedure, these laws have helped create a layer of confidence for those who might be fearful of civil or criminal penalties, patient and provider alike.

That’s an important part of patient access to care, Seigel explained.

“[Shield laws] certainly do protect patients' access to abortion care, and they reduce both the real and the perceived risks to the patient related to being prosecuted within their state if they travel outside of the state to receive an abortion,” she said. “We likely think those protections are pretty broad and would, in general, protect the patient.”

There are some limitations, Seigel continued, although one would be reticent to publicize workarounds for shield laws. It’d also be prudent to note that not all shield laws are the same, and as such, it would be beneficial for patients, providers, and abortion funds to assess a state’s protections.

That was actually the impetus for Manatt’s report, Seigel said. The national landscape for abortion access is constantly changing, not to mention complex to navigate. The Manatt report is the firm’s attempt to publish shield law information in layman’s terms so that patients, providers, and abortion access advocates can understand the regulations.

“There's an influx of patients moving and traveling in order to obtain abortion care when it's been severely limited in their states,” Seigel explained. “And so when it came to understanding these shield laws, and trying to apply them, we quickly realized that these shield laws were very complicated, similar to the abortion laws, and often span multiple different laws, or include a patchwork of executive orders and laws.”

Leiter and Seigel anticipate that shield laws will continue to evolve, especially as abortion-legal states examine the tools they have to facilitate abortion access.

“States are looking at this from all angles, especially where they border states that may restrict access to abortion to think about, how can they increase access not only for their residents, but to residents in neighboring states?’” Seigel said in conclusion. “So that any pregnant person who wants an abortion should be able to come to their state and hopefully be able to obtain coverage for that service.”

Correction 11/14/2023: This article has been updated to correct the spelliong of Randi Seigel's name.