Vermont lawmakers take up landmark abortion ‘shield law,’ but protections could only go so far

Vermont legislators are considering a bill that would protect providers and patients from investigations and prosecutions by states that have criminalized certain reproductive health care procedures. But there’s little protection that Vermont can offer beyond its own state lines.

The House Judiciary Committee’s hearings on H.89 this week mark the Legislature’s first major deliberations over abortion-related policy since the U.S. Supreme Court overturned landmark Roe v. Wade case precedent last summer, thereby striking down the federal right to an abortion. Even months before the Vermont Legislature convened for the 2023 session, lawmakers and advocates began crafting what’s known colloquially as a shield law, intended to protect patients from states with abortion bans who travel to Vermont for the procedure, as well as the Vermont doctors who provide it.

Such shield laws are new legal territory and an advent of the post-Roe national landscape, in which the legality and regulation of abortions have become a patchwork of state-specific laws. Though it contains numerous provisions, the crux of H.89 is that it bars a Vermont public agency from cooperating in any interstate investigation or proceeding which seeks civil or criminal penalties against a person for traveling to Vermont to obtain an abortion or gender-affirming care. 

The bill also bars the extradition of a Vermonter to another state in order to testify against a patient who received such medical treatment within the state — that could mean a Vermont-based doctor, or a Vermonter with knowledge of the out-of-state patient’s care.

David Cohen, a Drexel University law school professor, testified to lawmakers on Wednesday that last summer’s Supreme Court decision unleashed “the new abortion battleground” among states.

“The interjurisdictional abortion wars are coming,” Cohen said, quoting a paper he wrote with fellow legal academics. “Because without the national right, you're going to have these interjurisdictional battles.”

Only seven states have passed shield laws similar to H.89 since this summer’s Dobbs v. Jackson Women's Health Organization decision, and two others are considering similar bills alongside Vermont. The House’s draft language is particularly expansive in its inclusion of protections for patients who receive, and doctors who provide, gender-affirming care. With a number of states passing laws restricting or criminalizing gender-affirming surgeries and hormone therapies for transgender people, particularly youths, Vermont legislators said they wanted to safeguard such treatment provided within state lines.

H.89 is also the first pro-abortion rights bill put forward in the state since Vermonters overwhelmingly voted in favor of Article 22, also known as the Reproductive Liberty Amendment, which enshrined the right to reproductive health care in the state constitution. Article 22 is novel among states — California and Michigan voters approved similar ballot measures in November — and a shield law would further beef up Vermont’s protections.

“We all know that Vermonters overwhelmingly support the right to an abortion. We know because they told us at the ballot box in November,” Attorney General Charity Clark told the House Judiciary Committee on Thursday. “I think that our ethos here in Vermont was reflected in that vote in November, of bodily autonomy and personal freedom. … So it's really wonderful that we're all working and doing what we can to be supportive of putting that ethos into practice.”

But the shield law, despite its novelty and high-priority status among advocates, will have its limits if passed. Over the course of two days and hours of testimony, legal experts warned lawmakers that the shield is not bulletproof — particularly for patients who travel to Vermont to receive care, then return to states with anti-abortion laws on the books.

By prohibiting the extradition of testifiers and the subpoena of records, H.89 would provide patients some level of protection by kneecapping interstate investigations. But Vermont can’t stop an out-of-state agency from suing, interrogating, investigating or arresting a patient once they leave Vermont.

“The downside to the shield law is that the protections are largely for providers, and it's sad to me that the legal construct of our world, it doesn't really provide an avenue to protect patients more,” Lucy Leriche, vice president of public policy for Planned Parenthood of Northern New England, testified on Thursday. “I don't want patients to feel a false sense of security.”

Even protections for doctors would largely halt at state lines. Cohen provided an example: If a Vermont-based doctor provides an abortion for a Texas patient in Vermont, they’re safe from extradition so long as they stay in Vermont. But that could change if, say, the doctor travels outside the state.

“If this provider goes to Florida over the winter, they're not protected in Florida from the Texas governor asking the Florida governor to extradite this person, who is now physically present in Florida, for this criminal prosecution,” Cohen said on Wednesday. “And there's nothing Vermont can do other than saying we will not participate with what’s in Vermont.”

“It’s a new world for providers,” Cohen said.

Jessa Barnard, who is executive director of the Vermont Medical Society, on Thursday harkened to SB 8, a Texas law which garnered national attention for its establishment of what some dubbed an abortion “bounty” system, allowing citizens to sue anyone who “aids or abets” an abortion for civil penalties. Such laws “are innovative, they are new,” said Barnard, who was testifying in favor of the shield bill.

Scenarios that once “might be sort of far-fetched examples of liability following a provider to another state, may no longer be so far-fetched,” Barnard said.

H.89 has the support of Planned Parenthood of Northern New England, GLBTQ Legal Advocates & Defenders, the American Civil Liberties Union of Vermont, the Vermont Medical Society, the state Attorney General’s Office and more. When asked about the bill at a Tuesday news conference, Republican Gov. Phil Scott said he hadn’t yet reviewed its specifics but supported its intent.

Clark told lawmakers on Thursday that the Attorney General’s Office supports the bill and is confident in its constitutionality. Falko Schilling, the advocacy director for the ACLU of Vermont, told VTDigger he is not aware of any similar shield laws being challenged in court in other states.