The Dobbs v. Jackson Women’s Health Organization decision to overturn Roe v. Wade triggered a cascade of legislation across the country. In 2022 alone, more than 2,400 bills were introduced in state legislatures, according to the Guttmacher Institute.
In a number of states, legislation has been passed to protect those who seek reproductive care within their borders. People often travel for abortion care because their home state has banned or severely restricted access to the procedure. This new legislation represents the first time since the Civil War that states have passed laws saying they won’t help with interstate investigations into some criminal charges.
“What we're seeing at the state level is increased polarization,” Elisabeth Smith, director of state policy and advocacy at the Center for Reproductive Rights (CRR), tells Teen Vogue. Most of the states that are hostile to reproductive rights have either criminalized abortion care already or are working to do so, she adds.
The criminalization of pregnancy, Smith points out, impacts some groups more than others: Black, Latinx, Indigenous, and other people of color face heavier punishments and more frequently. Young pregnant people, particularly those under age 18, are also targeted by many of the bans on reproductive care.
Madeline Gomez, senior policy counsel at Planned Parenthood Federation of America, agrees: “I really think attacks on minors are the canary in the coal mine,” she tells Teen Vogue. "It’s a starting point, and then restrictions are applied to adults afterwards. We know that Black and brown families are over-surveilled and over-criminalized for a range of parenting decisions, and we know that pregnant Black and brown women in particular also experience high levels of criminalization.”
Then there are the attacks on access to gender-affirming care for trans people. Reproductive justice advocates see a clear connection here, noting that both reproductive and gender-affirming care are based on a fundamental right to bodily autonomy.
"The attacks that we're seeing on access to care for trans folks come straight out of the playbook we've seen used against abortion access,” Gomez says. “It's just moving much faster than what we had previously seen — and I think they're able to do that because they have this playbook to work from."
Meanwhile, Smith says, states that support access to abortion care have been removing unnecessary barriers to reproductive and gender-affirming care, passing legislation or ballot proposals that affirm the right to abortion access, and enacting what the Center of Reproductive Rights calls “shield laws.”
“Shield laws are meant to protect providers, helpers, and the medical records of patients who seek abortion and transgender health care from the reach of states that have or are trying to criminalize abortion and gender-affirming care,” CRR's Smith explains. The organization advocates for shield laws and believes it is critical for states to pass shield laws that ban government agencies within the state, like police departments or jails, from assisting with out-of-state investigations into people who provide, assist with, or receive reproductive or gender-affirming care.
“There is lots of support for abortion in New York City, for example, but New York City is not the entire state of New York, right?” Smith says. “In almost every state, you can find pockets of the state that, politically, are really different from the majority of the state.” These differences could mean that, without statewide bans on collaboration in place, people who travel to find legal care could be put in danger if a local government agency chooses to cooperate with an out-of-state investigation.
That is the central argument of a 2023 article for the City University of New York Law Review, “Extradition in Post-Roe America,” by Alejandra Caraballo, Cynthia Conti-Cook, Yveka Pierre, Michelle McGrath, and Hillary Aarons. The authors wrote: “States must meet a delicate balance, however, in enacting protections that resist extradition without misleading their residents and people seeking safe-harbor within their borders about the extent to which they may seek health care safely.”
There are several problems with shield laws right now, according to Caraballo, a clinical instructor at Harvard Law School's Cyberlaw Clinic. “We talked at length in our article about Immigration and Customs Enforcement and sanctuary laws,” she says, referring to laws passed to protect undocumented immigrants.
Caraballo continues, “Essentially, if states are just saying ‘you may not [help investigate someone for an abortion],’ but there's literally no enforcement mechanism, law enforcement officers are just going to do it anyway.”
This is the reality beneath several immigration sanctuary laws. Washington state passed laws banning state agencies from sharing nonpublic data with federal immigration officials for the purpose of immigration enforcement; however, a report by the Center for Human Rights at the University of Washington found that “this information-sharing was so institutionalized in the regular practices of local law enforcement that it took place on a daily basis, even after [legislation banning information-sharing] became law.”
Caraballo wants states to add private causes of action to their shield laws, meaning that people harmed by unlawful information-sharing have a clear path to sue in civil court. Says Dale Melchert, staff attorney at the Transgender Law Clinic, “I love that idea, I think that’s fantastic. We need actual tools to fight back.”
As shield laws continue to evolve, state legislatures may return to the topic and update their laws with new practices.
“People are sharing best practices,” Smith says. “In Washington state, for example, in their shield law, they actually require an attestation that a warrant request or anything else is not related to legally protected health care.”
The authors of the “Extradition in Post-Roe America” article recommend states require warrant requests to include the facts that lead up to the arrest warrant. Washington’s attestation law appears to go a step further: Whomever writes the attestation can be charged with perjury and a statutory fine if they “intentionally submit” a false statement to “seek documents, information, or testimony” regarding protected health care.
Bottom line, if warrant requests aren’t required to state the facts that lead up to a charge, law enforcement officials may not know they are helping with an investigation into reproductive or gender-affirming care.
“The states that have enacted shield laws are committed to the success of these laws," Smith says. "They want to see people in their states shielded effectively.”
Kat Rohn, executive director at OutFront Minnesota, which led the organizing for Minnesota’s recent trans refuge law, agrees: “This is the start of a broader response that is continuing to help make our state a better place for LGBTQ folks and transplants.”
The “Extradition in Post-Roe America” article also addresses the history of the Extradition Clause in the US Constitution, which may present a more difficult problem to solve. Extradition is the practice of sending people who left a particular state after being charged with a crime back to that state to face trial. It also happens between countries, as an international extradition request.
Says Caraballo, “Basically, what we were trying to explain is this: The way the Extradition Clause works now, states [can be] required to abide by the most onerous criminal laws in other states, even if it's not a crime in their laws.”
There are two major Supreme Court rulings on the Extradition Clause, according to Caraballo: Kentucky v. Dennison and Puerto Rico v. Branstad. “When you put those two together, what it basically says is that the states do not have a discretionary role in determining what they can and can't extradite for,” she explains.
The experts Teen Vogue speaks with here say they are not aware of any attempt to extradite someone for providing, assisting with, or receiving an abortion or gender-affirming care. Still, some believe it is a possibility.
Smith says the antiabortion movement not only tries to ban abortions, it tries to scare people out of having or helping others access abortion. She poses the question: “Would a state like Texas try to pursue extradition of an abortion provider in a state like Massachusetts? They might," she answers, "because if the goal was to stop people from helping Texans, some kind of high-profile prosecution or high-profile extradition request might be something that is appealing. I think that's possible.” She pauses for emphasis. “But it hasn't happened yet.”
Caraballo wants states to act now to prepare for that possibility. In the CUNY Law Review article, she and her peers make several recommendations for legislators. One suggestion is to add dual criminality — an international principle that says countries won’t agree to extradite someone unless the crime they are accused of is a crime in both countries — provisions to their extradition laws.
“This idea of ‘dual criminality’ exists in a much more formal sense as an international concept,” says Caraballo. “It's the way that countries protect human rights standards.” She also notes that it’s a concept that wasn’t widely in use when the Extradition Clause was first interpreted by the Supreme Court in Kentucky v. Dennison. The article authors describe their suggestions as temporary solutions amid the work toward new federal protections.
The experts Teen Vogue speaks with here hold modest optimism for the future of reproductive and gender-affirming care. “I’ve been out for seven-plus years,” Caraballo says. “This has probably been both the easiest and the hardest time to be openly trans…. I think, in the short term, this is gonna be really bad. There’s no sugarcoating it. But I think in the long term, we will win.”
She recalls, “In some ways this mirrors what happened in 2003-2004 with marriage equality. Dozens of states passed bans on marriage equality, even constitutional bans. I think a lot of people felt hopeless, and less than 11 years later, we had Obergefell, [the Supreme Court ruling that legalized gay marriage].”
OutFront Minnesota's Rohn feels the same way: “There is a real strength in our LGBTQ history in that we have fought and endured and won, even when we did not choose [the fight],” she says. “I think there is a hope and a strength in knowing that our community has won and that we've always been here for one another.”
OutFront Minnesota is receiving multiple calls each day, according to Rohn, from people and families living in states where gender-affirming care is being restricted. They ask about accessing care in Minnesota or possibly moving to the state.
“I want young people to be able to look, wherever they live, to Minnesota and say, ‘If we show up, if we stay engaged in this process, we can make change,’” she says. “I had a parent call and we had a conversation, and they were crying at the end of it. They were like, 'Tonight, I can sleep a little more hopeful.’ That sense of hope and power in the work that we're doing here is what keeps us going.”
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