Abortion continues to be essential health care despite the overturning of Roe v. Wade. Every elected official must do their utmost to support abortion access and protect the health and freedoms of those whom they represent. Most abortion patients are already mothers, and denying them care by criminalizing their doctors and even their loved ones can have dramatic repercussions—ranging from poor health to poor economic outcomes—not only for them but for their children as well.
As some states seek to outlaw abortion within their own borders, and attempt to control what happens across state lines, attorneys general are poised to play a significant role in the current post-Roe world. Recognizing this, many attorneys general have already committed to protecting abortion rights, as well as the people seeking, providing, or helping others secure care.
The Center for American Progress proposes three areas in which attorneys general can leverage the tools at their disposal to blunt the consequences of state abortion bans. Attorneys general can:
- Continue to recognize the need for abortion regardless of its legal status.
- Protect and support in-state abortion patients, providers, and funds.
- Advance abortion rights and access nationwide in collaboration with other attorneys general who support abortion care.
1. Continue to recognize the need for abortion regardless of its legal status
Certain states, predominantly in the South and Midwest, are in the process of beginning to enforce trigger bans and pre-Roe bans, as well as passing laws, that define providing abortion as a felony offense and/or enact new civil penalties on abortion provision and people who help others access care.
If an attorney general holds office in a state with a legislature that has or is moving to criminalize or severely limit abortion, that attorney general may have the authority to:
- Bring a legal challenge to seek a state supreme court decision that any trigger bans, pre-Roe bans, or new abortion bans or restrictions cannot be enforced.
- When appropriate, bring a civil rights suit against a prosecutor for wrongful arrest or malicious prosecution, or under another relevant civil rights statute, if a prosecutor charges a person for a pregnancy outcome under existing or novel legal theories.
- Clarify good Samaritan laws for people both inside and outside health care who are engaged in harm-reduction work related to self-managed abortion.
If, conversely, an attorney general holds office in a state that support abortion, that attorney general could:
- Work to ensure the safety and privacy of residents of other states traveling into their states for care.
- Decline to assist in criminal prosecutions of, or civil lawsuits against, abortion providers, patients, or those who help connect patients to providers. Specifically, attorneys general could decline to extradite abortion providers—including doctors, nurse practitioners, and other good-faith care providers—who provide abortion care in violation of another state’s law, particularly those who prescribe medication abortion to residents of another state via telemedicine. Attorneys general could also decline to share information with or supply other law enforcement aid for such investigations. Finally, they could issue an official opinion affirming the ability of health care professionals to provide care in accordance with state law to out-of-state residents.
2022 State Abortion Bans Are a Patchwork of Increasingly Extreme Laws
2. Protect and support in-state abortion patients, providers, and funds
Demand for abortion care is already rapidly increasing in states where abortion is not penalized. Particularly in states that support abortion rights and access, but also in states where abortion is allowed under certain circumstances, attorneys general could affirm the legality of seeking and providing abortion care, and support the safety of those who do so, by issuing guidance and/or policies and enacting practices to bolster efforts to protect access to care. Specifically, attorneys general could take the following actions.
Effectively direct the use of prosecutorial resources and law enforcement
Attorneys general could prohibit law enforcement resources from being devoted to prosecutions related to abortion provision or pregnancy outcome, including self-managed abortion, as well as encourage district attorneys to issue formal policies of nonprosecution. Attorneys general could also devote law enforcement resources to protecting abortion providers, patients, and funds, in addition to prosecuting harassment, threats, and violence directed toward the same.
Provide needed legal guidance and interpretation
Attorneys general have the authority to clarify, or establish, that under state law:
- Laws susceptible to expanded personhood arguments, including child protection laws, are inapplicable prior to birth.
- Abortion providers and hospitals are protected as good Samaritans for providing information outside a patient relationship to women or others who may have self-managed an abortion before seeking medical care.
- Abortion providers’ licenses to practice will not be removed for providing abortion care—including pre- or post-abortion care—across state lines to a person who resides in a state that has limited abortion access.
Moreover, attorneys general should interpret health, life, and emergency exceptions to abortion bans or restrictions as broadly as possible under state law, inclusive of mental health reasons. And to the maximum extent possible under state law, attorneys general should decline to require law enforcement reporting for abortions allowed due to exceptions for pregnancies that resulted from rape or incest.
Ensure proper insurance coverage and reimbursement
Attorneys general should enforce state Medicaid obligations to reimburse providers for abortions provided consistent with the Hyde Amendment, as well as for any abortion allowed under state Medicaid policy. They can also work, in partnership with other states and the federal government as appropriate, to build a pathway for providers to be reimbursed for providing abortion care to women and other people who can become pregnant regardless of residency or ability to pay. Finally, attorneys general could sue insurance companies that refuse to cover contraception or abortion when required.
3. Advance abortion rights and access nationwide in collaboration with other attorneys general who support abortion care
In addition to what one attorney general can do within one state, there is much attorneys general can do in collaboration with each other at regional or national levels, including:
- Pursuing new legal theories in support of abortion at both the state and federal level, such as rights that protect gender equality, bodily autonomy, and consent in a medical context.
- Preempting and countering attempts to expand the definition of “person” to include embryos.
- Developing case law, through litigation, to affirm the right to travel from one state to another for medical care and to contest any state’s attempt to constrain anyone’s ability to travel.
- Improving regional law enforcement norms surrounding privacy and pledging consequences for those who violate norms by, for example, opening mail without warrants or skirting privacy law under the Health Insurance Portability and Accountability Act (HIPAA) to seek medical information from hospitals and other providers.
Reports of efforts to monitor individuals and criminalize abortion care are growing as states begin to implement their abortion bans. While some state officials may choose to use their offices to monitor women, patients, and doctors, attorneys general who seek to protect those same individuals have a great deal of power to protect the privacy, health, and safety of people both within and outside their states’ borders. Although the dangers of a post-Roe world must not be downplayed, the power of those in office to do good should similarly not be ignored.
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Senior Director, Women’s Initiative
Former Legal Fellow