Three Republican states went to the U.S. Supreme Court on Wednesday to challenge abortion “shield laws” protecting providers in three Democratic states, escalating the legal conflict over pills that account for a majority of abortions.
The attorneys general of Alabama, Arkansas and Louisiana contend that the laws in California, Massachusetts and New York undermine their abortion bans and their states' sovereignty. Federal regulations allow prescriptions for abortion pills to be made by telehealth and filled by mail, and the three GOP states want to keep the pills out and punish out-of-state providers for sending them.
“This is the first time we've seen a state or group of states suing other states to challenge the validity of shield laws,” said Mary Ziegler, a University of California, Davis, law professor and author of seven books on abortion law and history.
The Supreme Court can hear disputes between states directly, though it rarely does. If the top court weighs in, it could short-circuit existing lawsuits.
Louisiana and anti-abortion activists have been frustrated with a lack of federal action by President Donald 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 Supreme Court in May preserved access to abortion medications as that case plays out.
“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,” Alabama Attorney General Steve Marshall said during a news conference with Murrill and Arkansas Attorney General Tim Griffin.
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.
Louisiana and Texas have pursued criminal charges and civil claims against doctors based in New York and California. Officials in California and New York have refused to cooperate, citing their shield laws.
“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,” New York Attorney General Letitia James said in a statement Wednesday.
Ziegler said Alabama, Arkansas and Louisiana would have a stronger case if they had first tried to get the highest court in one of the three other states to force its officials to cooperate. She also said the lawsuit's timing is odd — six weeks before November congressional midterm elections that could prove difficult for the GOP.
“This may be an example of the political incentives not being the same for state-level Republicans versus federal Republicans,” she said. “If you're running in a contested race, calling attention to abortion is not a great idea, but if you're Louisiana attorney general, you're not really in that position.”
But Rachel Rebouche, a University of Texas law professor, said suing other states has been a potential legal strategy for GOP states since the first shield laws were enacted.
“That it’s taken this long is kind of remarkable,” she said.
Even before Roe was overturned, abortion pills were the most common means of ending pregnancies in the U.S., and telehealth makes abortion available even where it's banned. The three GOP attorneys general said hundreds of patients in their states use pills to end pregnancies each month.
Also on Wednesday, Alabama, Arkansas and Louisiana filed a lawsuit against 30 out-of-state abortion pill providers and their officers, accusing them of false advertising and other misconduct harming patients in states with abortion bans.
FDA scientists have repeatedly found the regimen safe and effective, though the agency is now reviewing its rules.
