States vs States in Abortion Lawsuits

In an interesting lawsuit, three Republican states are asking the U.S. Supreme Court to make a decision on “shield laws” which protect abortion providers in three Democratic states. The legal battle is over pills that account for a majority of abortions.

Federal regulations allow prescriptions for abortion pills to be made by tele-health, filled by mail and sent to anyone. Attorneys general of Alabama, Arkansas and Louisiana argue laws in California, Massachusetts and New York undermine their abortion bans, and states’ sovereignty. The three GOP states want to keep the pills out, and punish out-of-state providers for sending them.

Louisiana, as well as anti-abortion activists, have been frustrated with lack of federal action by President Trump’s administration against medication abortion. Louisiana Attorney General, Liz Murrill, sued the U.S. Food and Drug Administration over its rules allowing mail-order prescriptions. The FDA says its review of abortion pills will continue into next year. The Supreme Court thus far has preserved access to abortion medications as that case plays out. In my opinion, the FDA should have no authority beyond determining the safety of the pills, hence, states shouldn’t be able to sue the FDA over availability issues.

Selling and mailing items from one state to another falls under the interstate commerce clause in the U.S. Constitution, becoming the responsibility of Congress.

Alabama Attorney General, Steve Marshall, argues, “We need and deserve the opportunity to be able to enforce our laws against those who have chosen, despite their knowledge of the illegality, to continue to foster abortion in our state.”

Thirteen states ban abortion in all stages of pregnancy, which the Supreme Court allowed in its 2022 decision overturning Roe v. Wade. Most Democratic-controlled states adopted abortion protections, including eight with laws intended to protect providers who prescribe abortion pills for patients in states with bans. Therein, lies the controversy of “shield laws”.

It also begs the Tenth Amendment question, “What about the elimination of states’ rights?”

On one hand, I would say shield laws do not. States’ rights control what happens within the states, not from one state to another. On the other hand, once a legal product in one state crosses state lines, it does become an issue for the other state which bans it. With such a contradiction, should states be allowed to sue out-of-state providers, or should they just be limited to confiscation of such products... which would require a warrant based on per case reasonable suspicion?

New York Attorney General, Letitia James, claims, “Louisiana, Alabama, and Arkansas are asking the Supreme Court to let them impose their abortion bans on New York and punish our doctors for providing legal health care.” No, they are not. New York doctors can still provide abortion pills and continue practicing, just not to out-of-state citizens where the product is illegal.

In my opinion, those seeking such medication should visit a state where the purchase is legal, and consume it there. Compare it to laws covering fireworks. I can “consume” certain fireworks legally in South Dakota which I can’t “consume” in Pennsylvania. Different product, but same concept.

Source used: Associated Press

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