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New York on Monday reinforced its standing as a reproductive-rights sanctuary by enacting laws that allow patients and health-care providers to counter-punch against legal attacks on abortion that originate in other states.
The laws specifically reference people who travel from another state to access reproductive services. Apple and Amazon are among the companies that already have pledged to cover costs for workers seeking reproductive rights services in another state.
“The women of New York will never be subjugated to government-mandated pregnancies, because that’s what will ensue if Roe v. Wade is overturned by the Supreme Court,” Gov. Kathy Hochul (D) said while signing a package of bills codifying reproductive rights into law and providing defensive legal maneuvers. “Not here, not now, not ever.”
Effective immediately, the measures allow legal challenges for interfering with abortion care and largely prohibit law enforcement officials from cooperating with out-of-state action involving legally performed abortions. It’s now also illegal in New York, in most instances, to honor a subpoena or extradition request for an abortion-related case that originated in another state.
Connecticut passed similar legislation last month. California’s on track to do the same. It’s all a response to to fresh abortion restrictions elsewhere—such as laws in Texas, Idaho, and Oklahoma that let any resident sue someone suspected of facilitating an abortion—and the expectation that the US Supreme Court will overturn the landmark Roe v. Wade decision.
Some 26 states are expected to implement laws that effectively ban abortion access if the high court guts the 1973 decision that established abortion rights, according to the Guttmacher Institute, the nonprofit abortion-rights advocacy group.
“Bounty-hunting statutes, fetal personhood laws, new interpretations of murder statutes—all will be used to pursue women who travel outside their own states to receive abortions,” said Mary McNamara, Bar Association of San Francisco president and partner at Swanson & McNamara LLP. “Blue states are left little choice but to introduce measures like sue-back laws in an attempt to prevent stalking and harassment of women coming into their jurisdictions.”
The New York laws reinforce its status as a potential sanctuary for thousands of patients in neighboring states, including Ohio and Pennsylvania, that have enacted abortion bans, according to the Guttmacher Institute.
The sue-back laws—allowing those seeking and providing abortions to fire back against anti-abortion, cross-border litigation with a damages lawsuit—might not result in a legal frenzy, said McNamara, whose San Francisco firm is one of 20 offering free legal representation to people seeking abortions and those providing the services if Roe is overturned.
“Such laws may give pause to the extremists. They may help prevent the courts from being swamped by bounty-hunting lawsuits and long-arm prosecutions by overly zealous DAs,” she said.
While states key up legislation shielding patients and providers, employers are lining up benefits packages to provide out-of-state care for workers to obtain abortions if their home states severely restrict or ban the procedure—all of which involves navigating tax and benefit laws. Beyond the tech giants, Citigroup, Levi’s, and Yelp are among other companies that announced they will cover costs for workers seeking reproductive rights services in another state.
Still, companies are being cautious about the types of benefits they’re providing, said Melissa Ostrower, co-head of law firm Jackson Lewis’ benefits group in New York City. The firm is advising employers to keep benefits broad, if possible, to avoid litigation, she said.
The way they structure their benefit offerings is the first line of defense, Ostrower said. The sue-back legislation could potentially provide another. “But I don’t think this is going to be the only defensive action they might take,” she said.
Blocking Suits, Subpoenas
States including Idaho and Oklahoma have sought to mimic the Texas law, known as SB 8, that permits bounties and allows people to sue patients seeking abortions and those assisting them. Blue lines are being drawn from the West and East coasts to prevent those lawsuits from crossing state lines.
New York’s law, (S. 9039A) signed by Hochul, creates a civil cause of action for unlawful interference with protected rights to reproductive healthcare. The law—known as the New York Freedom from Interference with Reproductive Health Advocacy and Travel Exercise Act, or FIRE HATE Act—allows claimants to seek compensatory damages, costs, attorneys’ fees, and punitive damages if they can prove actions against them amounted to harassment or were “maliciously inhibiting” the exercise of their protected rights.
Hochul also signed into law a measure (S. 9077A) protecting abortion service providers from extradition, arrest, and legal proceedings in other states for services provided legally in New York. Other measures include a ban on professional misconduct charges against licensed medical professionals who provide legal abortion services to out-of-state patients, and a prohibition on malpractice insurers from taking action against a healthcare provider in New York for performing reproductive services that are illegal in other states.
The signed bills “say that we will not aid and abet anyone who wants to criminalize our rights to choose. And that’s what we’re seeing today, and we’re not done yet. Because as you chip away, chip away, chip away, we will continue to find new ways to stop your attack on our ability to govern our own lives and are reproductive choices,” Senate Majority Leader Andrea Stewart-Cousins said at a news conference.
Other States Take Steps
A Connecticut law, effective July 1, lets an individual or corporation sue if they have a judgment entered against them in another state for receiving, providing, or helping a person obtain legal abortion services in Connecticut. Nor can Connecticut entities disclose any information related to lawful reproductive care without the patient’s or guardian’s permission.
A Washington law that took effect June 9 affirms access and bars prosecuting someone for assisting an individual “exercising their right to reproductive freedom.” The state also issued a public welcome for doctors from states where the practice may be criminalized to come and work in Washington.
Similar legislation (A.B. 1666) pending in the California Senate Judiciary Committee would reject enforcing out-of-state lawsuits. Another bill (A.B. 2091) would shield individuals from having to provide information that would identify someone who sought care in California if the request is based on another state’s laws that interfere with a person’s right to choose or obtain an abortion or a foreign penal civil action.
Vermont voters this fall will consider a ballot measure creating a constitutional protection for “an individual’s right to personal reproductive autonomy.” If passed, that measure would be effective immediately.
—With assistance from Andre Tartar and Kelsey Butler