Expecting challenges, blue states vow to create ‘firewall’ of abortion protections

Anna Claire Vollers | (TNS) Stateline.org

Officials in blue states are vowing to build a “firewall” of reproductive health protections as they anticipate federal and state attacks on abortion access under the Trump administration.

“We’re going on offense,” Connecticut Attorney General William Tong, a Democrat, told Stateline. “We are in an unprecedented war on American women and patients. State attorneys general, particularly my colleagues and I who support abortion rights and reproductive freedom, have been building this firewall for some time now.”

President-elect Donald Trump has said he would leave abortion access up to individual states in the wake of the U.S. Supreme Court’s 2022 Dobbs ruling that overturned Roe v. Wade and dismantled the federal right to abortion.

But even in states with strong abortion protections, such as Connecticut and Massachusetts, lawmakers and other officials are already discussing ways to stave off legal challenges from various quarters, including federal agencies under a Trump administration and anti-abortion lawmakers in conservative states.

“What we’re watching is this interplay between protective states and the Trump-Vance administration, and what impact that administration will have on state laws and access to sexual and reproductive health care,” said Candace Gibson, director of state policy at the Guttmacher Institute, a research and policy organization focused on advancing reproductive rights.

“It’s going to be an interesting time.”

Targeting abortion pills

Tong said one of his biggest concerns is that legislative efforts and legal challenges from anti-abortion lawmakers in red states could lead to nationwide restrictions on the medication mifepristone. It’s one of two drugs most commonly used in medication abortion, which now accounts for nearly two-thirds of all abortions.

“If you ban that, it will be nothing if not a nationwide ban on abortion,” he said.

Conservative-led states could follow the example of Louisiana, which passed a law in its most recent legislative session to classify mifepristone and the drug misoprostol as controlled substances. Both are used in medication abortions as well as to treat other conditions, such as life-threatening postpartum hemorrhaging. Since Louisiana’s law took effect, hospitals in the state have pulled mifepristone and misoprostol from obstetric hemorrhage carts and instead stored them in passcode-protected cabinets outside of labor and delivery rooms. It’s a move some physicians worry could waste precious time in emergency situations.

Last week, Republican state Rep.-elect Pat Curry filed a similar bill in Texas. Conservative lawmakers in North Carolina hastily passed a law in 2023, overriding Democratic Gov. Roy Cooper’s veto, that included additional restrictions on dispensing abortion medication. That law has been mired in lawsuits.

But last month, Democratic attorneys general in 17 states and the District of Columbia asked a federal appeals court to uphold a ruling that North Carolina can’t impose restrictions on mifepristone that the U.S. Food and Drug Administration has said are medically unnecessary.

Meanwhile, anti-abortion groups released a “Make America Pro-Life Again Roadmap” last week, outlining their plans to hammer away at abortion access at federal and state levels, including an emphasis on challenging mifepristone access.

“We have a siege engine ready for these legal walls that we’ll face at some state legislatures and legislative levels, and also at federal levels,” said Kristan Hawkins, president of the anti-abortion organization Students for Life Action, on a media call last week.

Hawkins said legislators in nine states — Arizona, Kentucky, Louisiana, Mississippi, Oklahoma, South Carolina, South Dakota, West Virginia and Wyoming — would be filing bills targeting the sale or distribution of medications that can be used for abortions.

Arizona state Rep. Rachel Jones, a Republican, said on a recent call with media that she plans to target abortion pills in her fight against Arizona’s new constitutional amendment protecting abortion access, which voters approved earlier this month.

“There are other ways, at the front of this, to encourage women to make a different decision before they even go into that abortion clinic, before they order the pills, to stop the ability to be able to do that so easily through the mail,” Jones said. She said she plans to educate her legislative colleagues on how to combat the “big push” for medication abortion.

Bolstering shield laws

A number of states have passed “shield laws” designed to minimize the legal risks for people who provide or access abortions. But just eight states — California, Colorado, Maine, Massachusetts, New York, Rhode Island, Vermont and Washington — protect abortion providers from legal action regardless of where their patient is located.

For example, telehealth providers in states including California, Massachusetts and New York prescribe abortion medication to patients in states where abortion is banned. Shield laws attempt to protect those providers from prosecution.

State shield laws haven’t seen many challenges yet, but they could be coming, said Gibson, of the Guttmacher Institute.

Attorneys in the reproductive justice division of the Massachusetts attorney general’s office are looking at ways to further strengthen the state’s shield law. With the incoming Trump administration, they anticipate more efforts from conservative prosecutors and attorneys general to mount legal challenges with the expectation of a friendlier federal atmosphere.

“My office, including through our Reproductive Justice Unit, will continue to ensure that Massachusetts remains a leader in advancing access to care, protecting our health care rights, and addressing disparities, while working in collaboration with my counterparts across the country,” said Massachusetts Democratic Attorney General Andrea Joy Campbell in a statement to Stateline.

‘Regional impact’

Officials in blue states also are shoring up protections for contraceptive access, digital privacy and emergency abortion care in hospitals. For example, in Maryland, Democratic lawmakers passed a sweeping online data privacy law in April, in an attempt to limit how tech platforms and phone apps can gather and use consumers’ personal data, including reproductive health data.

Connecticut and Massachusetts are among the states looking at ways to strengthen their laws to protect reproductive emergency care if the Trump administration reverses current federal guidelines that say abortion is covered under the hospital emergency care law known as EMTALA.

Gibson said she expects to continue seeing more state lawmakers filing contraception protection bills in upcoming legislative sessions. In Virginia’s most recent session, Democratic lawmakers passed a bill to guarantee access to contraception, though it was vetoed by Republican Gov. Glenn Youngkin.

Earlier this year, Campbell, of Massachusetts, organized a working group of Democratic state attorneys general and others to collaborate on how to use shield laws and other legal and legislative tools to protect abortion rights.

“There’s been an increase in collaboration conversations amongst different state policymakers,” Gibson said in an interview with Stateline. “I think policymakers understand these state bans on abortion access aren’t just state bans, that they have a regional impact as well.”

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