Top law enforcement officers in red and blue states are leaning on never-before-tested legal strategies to probe the boundaries of reproductive restrictions nationwide since the Supreme Court overturned the constitutional right to an abortion.
Republican attorneys general invoked an 1873 anti-obscenity law to warn pharmacies of the legal consequences of distributing the abortion pill. They also threw their support behind an unprecedented lawsuit seeking to overturn the FDA’s two-decades-old approval of the drug.
Democratic attorneys general sued their own party’s administration in an effort to make the abortion pill more accessible, and banded together to defend citizens’ right to travel to states where abortion is legal.
“Right now, we’re in a chaos state,” said James Tierney, former attorney general of Maine and lecturer on state attorneys general at Harvard Law School. “If you’re an attorney general, and you have a deep-seated commitment to either your pro-choice or pro-life position, you’re not going to worry too much about the outlines or the outer limits of your jurisdiction.”
Decades of legal predictability under Roe v. Wade disappeared last summer, leaving confusion about how anti-abortion and abortion-rights states coexist. Some of the biggest unanswered questions involve situations developing along the borders where red and blue states touch.
Democratic attorneys general are looking into data privacy protections to support pregnant people traveling to their states to obtain an abortion, and prohibiting law enforcement from cooperating with extradition requests from anti-abortion states. Republican attorneys general are filing federal lawsuits with the goal of freezing abortion-rights directives from the Biden administration for as many states as possible.
Advocates, Not Judges
“This emerging legal landscape is very complex, but what we’re starting to learn is the centered nature of attorneys general in every state—hostile or supportive” of abortion rights, said Maggie Jo Buchanan, senior director for the Women’s Initiative at The Center for American Progress, a progressive policy institute.
Attorneys general have the power to defend and enforce state laws, file lawsuits against the presidential administration, use the bully pulpit to influence groups or companies, pressure legislatures to pass laws, and spread information about what’s legal in their states.
Many attorneys general are using the gap in knowledge about how far the Supreme Court’s Dobbs v. Jackson Women’s Health Organization decision goes to try to push their policy positions across borders.
“Each battleground has a battle strategy,” said California Attorney General Rob Bonta. “Sometimes it’s defense, sometimes it’s offense, but the goal is to engage with maximum impact in every battleground everywhere in the United States.”
Tierney said that “lawyers can always find words to justify their position.”
“Attorneys general are not judges,” he said. “They are free to advocate. So they will advocate for whichever side they are on because they feel very deeply about the underlying issue.”
‘Not a War That We Chose’
Dealing with attacks on reproductive health care isn’t what Connecticut Attorney General William Tong, a Democrat, signed up for when he took office in 2019.
“If you asked me two years ago would I be fighting to save mifepristone? No,” Tong said, referring to a drug used in medication abortions. “Did I anticipate that I would have to consider the rules on extradition from Connecticut?” Tong asked. “No.”
“I don’t want to do this work. Nobody feels good about it,” said Tong. “This is not a war that we chose.”
Democratic attorneys general are bracing for the impact of a federal judge in Texas’ decision on an abortion pill lawsuit that could be the first post-Dobbs restriction on abortion access that touches every state.
If the judge issues a nationwide injunction taking mifepristone—one of two drugs commonly used in tandem for abortions—off the market, it would be “an earthquake when it comes to reproductive freedom in this country,” said Washington Attorney General Bob Ferguson.
Washington, Oregon, and 16 other states sued the FDA in a corresponding lawsuit arguing that restrictions on the abortion pill are overly burdensome.
“Democrats don’t usually sue the Biden administration,” Tierney said. “Clearly, the Democrats are playing a strategy card here.”
On top of shoring up reproductive health freedoms for their own citizens, some blue states have a reputation of being “safe havens” because of the protections they offer people who travel from out-of-state.
Massachusetts passed a shield law that protects providers and patients from anti-abortion state laws and extradition requests. California similarly prohibits extradition.
“Implementation has been fine, in part because we’re not aware of any sort of need for providers to avail themselves of those protections yet,” said Amanda Hainsworth, senior legal adviser to the Massachusetts attorney general.
Several attorneys general are encouraging their legislatures to pass laws that protect patient’s data privacy, which is an especially important protection for people who travel, said Carol Rose, executive director of the ACLU of Massachusetts, an organization focused on civil rights. Democratic attorneys general sent a letter to Apple urging the company to protect reproductive health information.
Laws on the Books
Since the Dobbs decision, Republican attorneys general have been working together and separately to “ensure that their laws are on the books, fully enforceable, and unblocked in federal courts,” said Carolyn McDonnell, litigation counsel for Americans United for Life, an anti-abortion advocacy group.
“In Dobbs, we argued that Roe v Wade pitted a woman against her child,” Mississippi Attorney General Lynn Fitch said in an emailed statement. “But it is more than possible to both empower women and promote life and in this new Dobbs era we are recommitting ourselves to ensuring our laws reflect the same compassion during and after pregnancy.”
Missouri Attorney General Andrew Bailey said in an emailed statement that he wants “to enforce the laws as written,” and that his office will “use every tool at its disposal to defend the right of Missourians to protect the unborn.”
Thirteen other Republican attorneys general contacted numerous times for this story each declined to be interviewed by Bloomberg Law, or did not respond to requests for comment.
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GOP attorneys general also had some early success by working together: the drug store chain Walgreens vowed not to distribute abortion pills in states where attorneys general warned them of the legal consequences. The attorneys general argued that the Comstock Act, a 19th century law that prohibits the mailing of obscenities, applies to the abortion pill. The Department of Justice said the law doesn’t ban mailing the drugs when the sender doesn’t intend that the recipient will use them illegally.
Some Republican-led states “have even indicated that they plan to prosecute people who travel to states that have abortion access if they leave the state for that purpose,” said Delaware Attorney General Kathy Jennings, a Democrat.
Texas Attorney General Ken Paxton unsuccessfully defended travel-related provisions in his state’s law, which would’ve criminalized buying a bus ticket while in the state to travel to have an abortion in another state.
Crisis Pregnancy Centers
One roadblock Democratic attorneys general are facing is regulating crisis pregnancy centers—facilities that look like reproductive health-care clinics but actually seek to prevent people from getting abortions.
Although they must abide by a 2018 Supreme Court ruling that protects the centers’ free speech rights, Democratic attorneys general are thinking creatively about how to utilize consumer protection laws to their advantage.
“There are some nuances in the application of our consumer protection statutes to crisis pregnancy centers which can make enforcement challenging at times,” said Hainsworth, but the Massachusetts attorney general’s office is looking at how it can use its authority “to address problematic practices.”
The state issued a consumer advisory on crisis pregnancy centers and sent one organization a cease-and-desist letter.
Massachusetts and Connecticut are creating new positions in their attorneys general offices to focus on reproductive rights, since they say being proactive about challenges has become a full time job. New York has already put someone on the payroll.
The goal is to bring on a director who can collaborate internally with “the various bureaus and divisions in the office” and work with “our national partners, including attorneys general from other states, in a very coordinated way,” said Massachusetts Attorney General Andrea Campbell.
Massachusetts, Connecticut, Delaware, New York, and Oregon have also launched hotlines partnering with law firms to offer pro bono legal advice for providers and the general public as the legal landscape shifts.
Picking up the phone are lawyers from firms including Debevoise & Plimpton; Foley Hoag; Morgan, Lewis & Bockius; Ropes & Gray; Skadden, Arps, Slate, Meagher & Flom; and Quinn Emanuel Urquhart & Sullivan.
“While sometimes I think ‘know your rights’ efforts seem easy, they’re really critical,” Buchanan said.
Defending State Laws
The majority of the workload for Republican attorneys general is in defending state laws, since “the Biden administration is extremely limited in what it can do,” said Denise Harle, senior counsel for Alliance Defending Freedom, a faith-based legal advocacy group.
That’s not to say the attorneys general have sat idle when the Biden administration has taken action. Texas, in particular, has aggressively fought the guidances it views as overstepping the administration’s authority.
Paxton sued the Biden administration over its guidance that emergency abortions remain legal across the US, regardless of state law, earning an injunction that prevents the administration from enforcing the federal statute in Texas.
Paxton also sued the federal government over a directive telling pharmacies that they can’t discriminate against pregnant people and must distribute the abortion pill.
“Whether federal administrative agencies have the authority to devise abortion protections within regulations” is an open legal question, McDonnell said.
As Republican and Democratic attorney generals duel, people “are going to be feeling a lot of whiplash in the weeks ahead,” Buchanan said. “The role of attorneys general to explain and clarify the laws will only be more important.”
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