Image: Demonstrators protest outside the Supreme Court two years ago after its 5-4 decision overturning the constitutional right to abortion. Since then, UC Davis law professor Mary Ziegler has become a sought-after expert on the subject. (Steve Helber / Associated Press)
Can doctors in states where abortion is legal be extradited to states where it’s not? Last week, Louisiana prosecutors filed criminal charges against a New York doctor for violating the state’s abortion laws. The facts of the case aren’t fully clear, but prosecutors allege that the doctor mailed pills to a woman who gave them to her minor daughter. When the daughter experienced complications and called the emergency number 911, law enforcement learned that she’d terminated her pregnancy and discovered the pills had come from out of state.
This marks the first such cross-state border prosecution since the Supreme Court reversed Roe v. Wade in 2022, but it almost certainly won’t be the last. So could Massachusetts physicians be next — or even other people who help out-of-state abortion seekers, like those who donate to abortion funds?
Cross-border prosecutions involve a wide range of legal questions, but the most important may be whether states like Louisiana can extradite defendants from shield states like Massachusetts. Extradition is a common feature of criminal stories in the news, and usually, states work with each other to fulfill extradition requests, especially when defendants commit a crime in one state and then flee to another. This cooperation makes sense because most of the time, states agree on what should be criminalized. If a homicide suspect from Maine or Wisconsin ends up in Massachusetts, or vice versa, states are on the same page about what should happen.
That isn’t the case when it comes to abortion: The Massachusetts Supreme Judicial Court has held abortion to be a protected right, and state law not only protects reproductive rights but also shields those who provide abortions from criminal consequences. Louisiana, on the other hand, treats abortion as a felony.
So, what happens in extradition fights when states can’t agree? Massachusetts’ shield law supplies one answer: The state can’t extradite defendants in cases related to reproductive rights, including doctors who mail pills to a state that bans abortions from outside of that state.
Louisiana will certainly push back if New York does refuse to extradite. The Extradition Clause in the federal Constitution states that anyone charged with a felony “who shall flee from Justice, and be found in another State” has to be delivered to the state where the crime occurred. Louisiana and other states like them will try to argue that this language applies to defendants from Massachusetts who mail pills into their states.
But there is a history of interpretations of the Extradition Clause that don’t make that any easy argument. Early extradition fights often turned on the nation’s divide over slavery, when states like Massachusetts refused to extradite those charged with aiding people who had escaped. Slavery was at the heart of an 1861 case called Kentucky v. Dennison, which held that the federal government couldn’t force state officials to comply with extradition requests. Dennison was overturned in 1987, when the Supreme Court ruled that federal officials could force state leaders to comply with extradition.
But even then, the court interpreted the Extradition Clause to apply only to a defendant who allegedly committed the crime in the state seeking extradition and later sought sanctuary elsewhere. That isn’t what happened in the Louisiana case: A physician in New York mailed pills without ever leaving that state. It also isn’t what happens with a network of so-called shield physicians who similarly operate out of states that protect abortion and mail pills into states that don’t. And it certainly isn’t what happens when abortion seekers from states with bans travel to places like Massachusetts and receive services or other assistance while they are in the Commonwealth.
It may not matter, however, that shielded doctors in places like Massachusetts have a strong argument under current law. The Supreme Court overturned more than a century of law in overturning Dennison. And the current conservative supermajority hasn’t been especially worried about the fallout from undoing longstanding precedent. After all, the court overturned Roe v. Wade and in doing so, helped to launch the interstate conflicts we see today.
Even if Massachusetts defendants are protected from extradition, cases like this one underscore the limits of current shield laws, which tend to protect their own residents without offering reciprocal safeguards to those from other shield states. And a Massachusetts shield defendant could be in danger even if they visit another state that protects reproductive rights. That’s because most states have laws in place that make cooperation with extradition requests the default unless there is some explicit exception in the law. Without reforms to its shield law, Massachusetts abortion providers might avoid extradition only if they never leave the Commonwealth.
The Louisiana prosecution is only the tip of the iceberg when it comes to cross-border conflicts. We’ve already seen Texas bring a civil action against the New York doctor charged in the Louisiana case. We can also expect to see private citizens suing out-of-state doctors and others for helping their partners or children get abortions. Other cases might involve the scope of free speech protections when prosecutors or plaintiffs in civil suits target information that supposedly facilitates abortion. Massachusetts’ shield law was designed for cases like this one, and if precedent is any guide, it should be enough to protect a wide range of defendants. But there’s the rub: It is hard to know now just how long any precedent will last.
SOURCE: Boston Globe, by Mary Ziegler, 5 February 2025.