Blue states see ‘shield laws’ as bulwark against Republican efforts to restrict abortion and gender-affirming care

By Sydney Kashiwagi, CNN

(CNN) — As Republican lawmakers have pushed restrictions on abortion and gender-affirming care in recent months, Democratic-led states have increasingly responded by passing so-called shield laws to protect people who undergo such care against the possibility they could one day face prosecution.

Nearly a dozen states – including Washington state, Colorado, New Mexico and Minnesota – have passed shield laws, and several governors have issued executive orders with similar protections, according to the Guttmacher Institute, a research and policy organization focused on sexual and reproductive health that supports abortion rights, and advocacy group Lawyers for Good Government.

So far, according to those groups, there are no known instances of law enforcement reaching across state lines to target citizens who traveled for such treatment – and the restrictive laws typically target doctors and others who provide such services. The laws also serve to protect patients in the event civil actions suits are filed against them or if officials from their home state try to subpoena or extradite them to face potential charges for accessing treatment in another state.

But advocates see the shield laws, which typically require officials to not cooperate with out-of-state criminal inquiries under the protected health services, as a way to prepare for and protect against an uncertain political climate – despite questions over their enforceability.

“Shield laws are the current kind of attempt to imagine where this continuing unfolding kind of chaotic legal landscape is going to end up, but the truth is, we just don’t know yet how they’re going to work in practice,” said Kelly Baden, the vice president for public policy at Guttmacher Institute.

Democrats legislate proactively

There are few restrictions on abortion in Colorado, where Democrats control the main levers of power, but the procedure is largely banned in neighboring Oklahoma and nearby Texas. Utah, Arizona and Nebraska, which also share Colorado’s borders, have passed laws restricting gender-affirming care. New Mexico also passed a shield law earlier this year to protect people seeking abortion and gender affirming care in the state.

The Centennial State, meanwhile, has been dubbed a “safe haven” for such care. In April, Colorado Gov. Jared Polis signed legislation prohibiting court officials from issuing a subpoena involving a legal matter pending in another state concerning someone who aids in, provides or accesses “a legally protected health-care activity in Colorado.”

Idaho, a Republican stronghold, threatens physicians who provide gender-affirming care to minors with a felony and a hefty fine, and considers it a crime to refer women across state lines to obtain abortion services. The state also has a near ban on abortions and a law on the books that makes it a crime for people to help minors travel out of state to get an abortion.

So Democratic legislators in Washington this spring passed a bill preventing local law enforcement from complying with investigations from out of state and bars extraditions related to abortion and gender affirming care that occur in the state.

Washington state Gov. Jay Inslee’s office said officials there have yet to receive any legal challenges from outside states and don’t anticipate any in the near future. Still, spokesperson Jaime Smith told CNN that the state’s attorney general “is fully prepared to defend this law if or when needed.”

Potential for legal complications

If tested, however, advocates warn the “shield laws” could create a complicated legal dilemma between states.

Khadijah Silver, an attorney for Lawyers for Good Government, said that shield laws look “pretty on paper” but many questions remain around enforcement.

“The question is what happens when they send the sheriff from Missouri? What happens? What is the plan? What are the steps? Those things have not been agreed upon, they have not been budgeted for,” Silver said.

Alejandra Caraballo, a clinical instructor at Harvard Law School’s Cyberlaw Clinic, who co-authored a report about extradition in the post-Roe America, which explored the legal limitations of shield laws, noted enforcement challenges include the possibility that local law enforcement may not be equipped to immediately determine whether an arrest warrant from another state was issued for a crime the safe-haven law is intended to protect.

“The reality is, all of this is so theoretical at this point. It’s very, very hard to tell how it would play out, and even if it did play out, most of the people involved would not have anything really to draw on because this is kind of novel territory,” Caraballo said.

Andrew Warren, a state attorney in Florida who was suspended by Republican Gov. Ron DeSantis last year over his position on abortion and gender-affirming care, told CNN he thinks it’s unlikely prosecutors would try to bring people back to their home states who left to access abortion or gender affirming care.

“I think that so much of the legislation around this is to fan the flames of culture wars and has nothing to do with the reality of what law enforcement officers and prosecutors are going to do,” Warren said.

That hasn’t stopped the National Center for Transgender Equality from advising people looking to travel to access gender-affirming care to seek legal representation “as soon as possible” before leaving, said Devon Ojeda, a senior national organizer at the National Center for Transgender Equality.

“We’ve been telling and advising trans people and trans families to find legal representation … because we just don’t how these shield laws are going to interact with the anti-trans bills that we’re seeing and the anti-abortion bills that we’re seeing,” Ojeda said.

Democratic state Rep. Leigh Finke, the first transgender lawmaker elected to Minnesota’s state legislature who sponsored the state’s “trans refuge bill,” said she has recently spoken with families in as far as Texas and Florida who are planning to travel to her state to access gender affirming care, and for now, she said, the shield laws serve as an extra layer to protect them.

“I think we will have to realize that people are not just relocating for gender affirming care, but they will be in their home states, criminals,” Finke told CNN. “They are going move and there will be extradition requests, there’s going to be a very complicated legal network of problems that arrive because some parents have transgender children.”

The-CNN-Wire
™ & © 2023 Cable News Network, Inc., a Warner Bros. Discovery Company. All rights reserved.