After overturning Roe v. Wade and imposing total abortion bans currently in 12 states, anti-abortion politicians have now set their sights on shield laws—a critical innovation that has helped preserve some measure of access to reproductive health care across the United States. While opponents of shield laws claim they just want to leave abortion “up to the states,” their efforts are, in fact, part of a longstanding campaign to ban abortion nationwide and criminalize providers and patients.

State shield laws emerged as a response to the national public health crisis following the end of Roe, in which abortion bans and threats of criminalization have driven tens of thousands of people to seek abortion care across state lines. Now implemented in 22 states and Washington, DC, shield laws are designed to minimize legal risks for patients, providers, and others assisting those seeking abortion and other health services (such as gender-affirming care)—by preventing state officials from cooperating with out-of-state prosecutions and extraditions. Notably, eight states’ shield laws explicitly protect clinicians who provide care via telehealth to patients in states with total bans and other severe restrictions, typically by mailing them abortion pills. 

Telehealth and the Abortion Access Crisis 

Rigorous research shows that telehealth provision of abortion care is just as safe as in-person care. Combined with the work of abortion funds, practical support networks, and self-managed care networks, telehealth provision under shield laws has helped maintain a degree of abortion access for tens of thousands of Americans in states with abortion bans. But despite these efforts, patients in restrictive states regularly encounter severe logistical and financial burdens, along with systematic care denials and delays that put their health and their lives at risk. Many are also forced to give birth against their will. Not content with these draconian consequences, anti-abortion activists are trying to use the courts, Congress and state legislatures to go after providers and patients. 

This year, Louisiana issued the first criminal indictment of an abortion provider since Roe v. Wade was overturned, charging a New York physician with criminal abortion for allegedly providing abortion pills via telehealth to a Louisiana teenager. The same physician was fined by a judge in Texas for allegedly mailing abortion pills to a patient there. In both cases officials in New York complied with the state’s shield law by not cooperating with these prosecutions. In July, a Texas man filed a federal lawsuit against a California physician, alleging she helped his girlfriend obtain a medication abortion via telehealth under that state’s shield law. These interstate conflicts make it possible that the future of shields laws could be decided by the courts. 

But these legal attacks are not the only tactic being used to criminalize abortion care. States are advancing legislation that would punish shield law providers, abortion funds and even patients themselves. For example, Louisiana passed a law last year that classifies mifepristone and misoprostol (drugs used in medication abortion) as controlled substances and enacted a bill that adds new penalties and a private right of action against shield law providers while labeling them “abortion drug dealers.” Other states have introduced bills that ban providing or delivering medication abortion. One of these, House Bill 7 from Texas, mirrors prior “bounty hunter” legislation by allowing for civil lawsuits against those that provide, possess, deliver or manufacture medication abortion pills and explicitly states that shield laws are not a defense. The Texas bill, which is expected to be signed into law soon, could also revive criminal charges for patients seeking abortion care. This summer, Montana introduced a bill that allows prosecutors to charge anyone who facilitates travel for abortion care (including the pregnant person themself) with “abortion trafficking.” 

Laying the Groundwork for a National Abortion Ban

These attacks also take direct aim at national abortion access. For example, the most recent Texas shield law plaintiff alleges that the California clinician violated the Comstock Act, a dormant 19th-century anti-obscenity law that could be misused to criminalize the distribution of medication abortion anywhere in the country. The Comstock Act has already been cited in legal efforts to force the Food & Drug Administration to further restrict—or even eliminate—access to mifepristone nationwide. Last Congress, Republican Senators (including J.D. Vance) went so far as to ask the Department of Justice to use Comstock to end telehealth abortion care. This aggressive national agenda is on full display in a letter signed last month by 15 Republican attorneys general, demanding that Congressional leadership take action to invalidate state shield laws on the federal level.  

In short, attacks on shield law provision lay bare the anti-abortion movement’s goal of weaponizing the criminal legal system—often by investigating, arresting, or prosecuting patients and providers—to eliminate abortion access nationwide. Unfortunately, such criminalization is already a reality for many and is intertwined with structural inequity. The same Black, Brown, Indigenous, immigrant, LGBTQ+, and working-class communities that are already over-policed and surveilled by the criminal legal and family policing systems are those most likely to be criminalized for abortion, miscarriage, or actions taken during pregnancy that are rarely punished in more privileged communities. These patients are also those most likely to face serious financial and logistical burdens when seeking care. 

Human Rights Versus States’ Rights

Ultimately, state shield laws pose a question that is recurrent in American history: whether states denying fundamental human rights to their residents can force other states to honor or even facilitate those abuses. Like those who resisted other fundamental injustices, shield law providers are accused of being “outside agitators” and infringing on “states’ rights,” but the profound harms they are attempting to mitigate are pervasive: Patients are already being denied reproductive autonomy and life-saving interventions because of laws that prevent doctors from providing the best standard of care. 

In case there was any doubt, the coordinated attack on shield law provision makes it abundantly clear that overturning Roe v. Wade and leaving abortion “up to the states” was never the final goal of the anti-abortion movement. Prosecution of telehealth providers is just the next step in leveraging the criminal legal system to make abortion inaccessible for all.