Anti-Abortion Activists Finally Overreached at the Supreme Court
Slate · L · trust 29/100
Abortion is back at the Supreme Court. Louisiana, Arkansas, and Alabama filed a new challenge last week to shield laws , statutes that protect people in states where abortion is legal from out-of-state civil and criminal consequences . Shield laws are a major reason that conservative states have struggled to enforce abortion bans. The Food and Drug Administration currently allows patients to access telehealth abortion . Shield laws have given a network of providers the confidence to provide telemedicine services to patients even in states where abortion is illegal. Louisiana and the other plaintiffs argue that the entire scheme is illegal and unconstitutional . The Supreme Court has original jurisdiction in fights between the states like this one, but there is reason to doubt whether this will be the suit to bring down shield laws.
Some of the concerns it raises, especially about clashes between state laws and the full faith and credit clause, are inevitably headed for a reckoning at the Supreme Court. The full faith and credit clause has long been understood to require states to honor public acts, records, and judicial decisions of their sister states. Abortion opponents have long argued that shield laws fly in the face of this principle .
The timing of this case still seems premature.
There are ongoing attempts to sue shield doctors or extradite them to ban states. For example, Louisiana Attorney General Liz Murrill sought to extradite two shield doctors, Remy Coeytaux of California and Margaret Carpenter of New York . A number of attorneys general have also filed suit against individual shield providers. Texas’ own civil suit against Carpenter for violating the state’s abortion laws is the furthest along. When Carpenter refused to travel to the state, a Texas court entered a default judgment against her including more than $100,000 in civil penalties, but a New York clerk refused to enforce that judgment against Carpenter , citing the state’s shield law. A state trial judge in New York dismissed Texas’ suit on a similar basis. An appeal in the case is still pending .
No shield-state Supreme Court has weighed in on how to resolve conflicts between shield laws and abortion bans. That means that the Supreme Court may want to let the issue percolate more in the lower courts before stepping in—and to see how irrevocable the conflict between the states truly is.
The red states’ full-faith-and-credit argument is hardly a slam dunk. The Supreme Court has carved out an exception in cases involving the full faith and credit clause establishing that states don’t have to enforce out-of-state judgments that penalize offenses against the state or members of its public . That’s exactly what Louisiana and its fellow states seem to be doing here.
Some of the other claims in the suit are even more of a reach. Take the states’ claims about public nuisance. The law defines a public nuisance as unlawful conduct that affects the rights of the public . That would classically include activities like burning toxic trash or blocking a highway. Beyond that, the law of nuisance has hardly been a strategic coup for those seeking to use it.
Take the example of opioids. State, local, and tribal governments turned to the idea of public nuisance to seek accountability for the harms of the opioid epidemic , arguing that the marketing and distribution of opioids had devastating public-health impacts.
Even though everyone agrees that the opioid epidemic has been a scourge, the result in these cases has been mixed . The litigation against pharmaceutical companies led to settlement agreements totaling some $50 billion , but the theory met an uneven reception in the courts, with some judges rejecting it.
Deeming shield laws or abortion pills to be a public nuisance seems to be completely implausible. Most Americans think abortion should be legal and support the idea that the right to choose abortion is protected by the Constitution . Shield laws were passed by democratically elected legislators. It is hard to see the Supreme Court deeming either one a nuisance.
The politics of the suit are also puzzling. The Trump administration has worked tirelessly to push off confrontations about abortion medication until after the midterm, recognizing that Republicans don’t tend to benefit when abortion is in the spotlight. Congress and the White House have largely succeeded in that task, even as several major federal cases and an FDA review of mifepristone loom large. It is bizarre to see Republican states intent on pushing the issue to the forefront now with this case, even if it risks hurting Republicans already in serious jeopardy of losing control of Congress.
The conservative Supreme Court supermajority will certainly be open to constitutional challenges to shield laws, even if the ultimate outcome of those challenges remains in doubt. But this case won’t likely go the way Republican AGs are planning. It’s noteworthy that not every prominent attorney general joined this filing; some of the most visible, like the attorneys general of Texas and Florida, are strikingly absent. There seems to be a reason for that: The threat to shield laws is real, but this case may not be the best vehicle to take them down.
The result may be a continued sense of complacency among Americans who think that the status quo on abortion cannot change because it has remained the same since shield laws first passed in 2022. That is a mistake. This suit may not be the one that transforms abortion in America, but the odds are that after the midterm, something else will.
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