Health Care

Lawmakers in blue states are linking protections for abortion and gender-affirming care

The push for ‘shield’ bills reflects a growing recognition that the concept of bodily autonomy and the ability of doctors to make decisions with their patients links the two issues.
People demonstrating in favor of abortion rights gather during an evening rally, Tuesday, May 3, 2022, at the Capitol in Olympia, Wash. (AP Photo/Ted S. Warren)

This story was originally published by The 19th

Blue states are crafting a new kind of legislation to respond to a dramatic wave of restrictions on abortion access and gender-affirming care across the country. Democrats are invoking the fall of Roe v. Wade as a reason to protect both areas of health care simultaneously — while aiming to create safe havens for those fleeing surrounding Republican-controlled states.

Lawmakers in five states — Illinois, New Mexico, Colorado, Washington state and Vermont, which has a Republican governor although Democrats control the state legislature — plus the District of Columbia have enacted such “shield” laws so far this year.

Connecticut and Massachusetts were the first states to pass this type of “shield” bill into law last year, according to the Movement Advancement Project, which tracks LGBTQ+ policy. The laws vary in scope and are still evolving as more states, like Oregon and California, introduce their own bills to explicitly combine protections for gender-affirming care and abortion.

However, the unifying theme is that they aim to legally protect patients’ ability to receive care in their state — and to protect both providers and patients from being punished. Advocates say that these kinds of protections are crucial as bans on gender-affirming care and abortion evolve in scope and  threaten interstate access to care.

Several states have gone so far as to sign laws protecting patients and doctors from being arrested if they receive or provide care, to shield them from aggressive litigation, or to prevent courts from issuing surveillance orders for investigations into gender-affirming care or abortion procedures.

The new push reflects a growing recognition of the fundamental connections between abortion rights and transgender rights by Democratic lawmakers, advocates say, in terms of bodily autonomy and letting doctors make decisions with patients. The bills are a response to the mounting legislative attacks and rhetorical vitriol Republicans are directing toward transgender rights both in statehouses and on the campaign trail

“These fights are linked by a really simple belief that each of us are the rightful authors of our own life stories,” said Arli Christian, a campaign strategist focused on LGBTQ+ rights at the American Civil Liberties Union (ACLU). “Each of us has the freedom to determine our path in life, each of us has the right to make decisions about our medical care and our bodies without government interference.”

Connecticut was the first state to pass a law both protecting patients traveling to the state from prosecution or civil liability based on laws in their home states and also shielding Connecticut providers. It did so in April 2022, before the draft leak of the Supreme Court’s decision overturning Roe v. Wade.

“​​We started to put together a suite of protections to essentially make Connecticut a safe haven for safe, legal reproductive health care, including abortion,” said Democratic state Rep. Matt Blumenthal, a co-chair of the legislature’s Reproductive Rights Caucus who drafted and co-sponsored the bill. “And because of the onslaught of laws against gender-affirming care, we included that as well.”

Connecticut lawmakers also recently passed additional protections shielding providers from disciplinary sanctions or other penalties for providing abortion or gender-affirming care to patients coming from states where the procedures are illegal.

“We were very proud that Connecticut was a leader, and that other states saw us as a model,” Blumenthal said. “We’re a little state, but we punch above our weight.”

Polly Crozier, director of family advocacy at GLBTQ Legal Advocates & Defenders (GLAD), who has worked with advocates and legislators to advance “shield” laws, said that Massachusetts’ law to protect gender-affirming care and reproductive health is what first transformed the conversation on how to simultaneously safeguard against restrictive bills.

Those safeguards include protections for doctors who provide telehealth to a patient in a state where gender-affirming care or abortion is illegal, plus provisions to protect doctors from being extradited if they provide health care to a patient who traveled from a state with bans in place, Crozier said.

As more anti-trans bills are signed into law, states are realizing that they need to act to protect health care within their borders, Crozier said — or they risk the destabilizing effects of whole areas of medicine being criminalized.

Blue states shield those who travel for care 

Advocates for abortion access and gender-affirming care say these protections are critical, both for residents of the blue states and those in red states who want to travel for care. The types of care are often linked: The closures of clinics that provide abortion often also impacted access to gender-affirming care, especially after the Supreme Court struck down federal abortion protections. In many places, Planned Parenthood’s clinics are the largest or the sole providers of gender-affirming care.

Kimberly Inez Maguire, executive director of advocacy group URGE, which advocates for reproductive justice with a focus on young people, said the new, increasingly complex legal and political terrain requires viewing health care access “as an ecosystem issue not necessarily confined by state borders.”

“No one should have to leave the place they love or the people they love in order to be treated like human beings,” she said. “We’re in a time, frankly, of harm reduction, where we can do a lot right to create access in as many places as we can and to protect access.”

Attempts to ban abortion have a longer history in state legislatures than those to restrict gender-affirming care, and Republican legislators are often borrowing tactics from one and applying them to the other. For example, Mississippi’s ban on gender-affirming care prohibits anyone from aiding and abetting patients from receiving gender-affirming care — language similar to abortion restrictions passed in Texas before the fall of Roe.

The evolution of bans on transgender health care means that shield laws that combine protections for abortion and gender-affirming care provide important protections, said Logan Casey, senior policy researcher and adviser for the Movement Advancement Project.

“We’re seeing language in the gender-affirming health care bans that are explicitly taking language from reproductive health care bans about aiding and abetting,” Casey said — meaning patients traveling across state lines, and possibly their friends and family, could be endangered.

New bans on abortion and gender-affirming care for youth have placed both forms of care further out of reach, requiring patients in many states to travel farther — if patients have the ability and means to travel at all — and caused physicians in some states to take their practice elsewhere, depleting health care resources for everyone.

Although advocates are grateful for states creating safe harbors, gender-affirming care is not a procedure, like an abortion, and is individualized — meaning that traveling to get care in a “shield law” state can be even more difficult, especially for transgender youth.

Alex Petrovnia, founder and executive director of the Trans Formations Project, a volunteer-run nonprofit that tracks anti-trans bills and has begun to track these kinds of laws more closely,  feels hopeful that more people are recognizing the severity of the crisis facing transgender people in the United States. However, having protections in some states is not good enough, he said.

“If only certain states are protected, and those are states that are more likely to be Whiter, wealthier states, we’re abandoning many of the most vulnerable if we say that that’s good enough,” Petrovnia said. “Many trans people do not have the resources or the ability to just up and move.”

Pushback in Oregon

But the move to tie abortion rights to gender-affirming care has spurred Republicans in Oregon to stage an ongoing, now weeks-long walkout bill that has thrown the statehouse into chaos and ground the legislative process to a halt.

In the wake of the Supreme Court overturning Roe v. Wade, Democratic lawmakers and advocates in Oregon, a major hub for abortion rights and LGBTQ+ activism, put forth a bill that would make it easier for minors under 15 to obtain abortions and require insurance companies to cover gender-affirming treatments. The proposed bill would prevent the state from participating in interstate investigations into reproductive and gender-affirming health care — and forbid state medical boards from suspending physicians’ licenses if they have been disciplined for providing reproductive or gender-affirming care in states where care is banned.

Cassandra Purdy, political director at Planned Parenthood Advocates Oregon, said the bill came out of a recognition that the same movements and same states banning abortion are also attacking access to gender-affirming care — and that many health care centers and clinicians provide both services.

“We really see this as absolutely necessary to do together,” she said. “One, because our whole movement suffers when one group is harmed, but also because this is a very intentional move to attack both these things.”

The state House passed the bill, but Republican state senators, who argue the measure infringes on parental rights, boycotted.

Blair Stenvick, communications manager at LGBTQ+ rights advocacy group Basic Rights Oregon, said Republicans in the state are “emboldened” both by the overturn of Roe v. Wade and the success of Republicans in other states in restricting gender-affirming care for youth.

“I think any bill we tried to pass around these issues, no matter how strong or minor it was, they would have demonized it and made this fuss over it,” Stenvick said. “ There are definitely a lot of issues that they are stalling, but I think our bill is the one that they are targeting the most.”

The walkout, currently the longest in Oregon’s history, currently shows no signs of abating. The state’s legislative session is constitutionally mandated to end June 25.

Red state law also combines abortion, gender-affirming care

Many red states with abortion bans already on their books when Roe fell then turned to passing bans on gender-affirming care in 2023 legislative sessions. But Nebraska, by combining both issues into one bill, provides a new kind of example of how states can apply arguments against abortion rights into other policy areas, said Alison Gash, professor of political science at the University of Oregon.

After a six-week abortion ban failed to pass, Republicans added a 12-week ban into a measure restricting gender-affirming care for trans youth. The ACLU and other groups are suing to block the law, arguing that the state legislature used “unprecedented” tactics to pass an abortion ban, and that combining two unrelated issues violates the state constitution. Republican lawmakers in Nebraska argue that restricting abortion and gender-affirming care are linked — and that by restricting both, they are “protecting children.”

Nebraska is the first state to take such an action, Casey said. “That was a tactical move made by the bill’s proponents to try to get the bill to pass,” he added.

Blumenthal of Connecticut said the aggressive anti-abortion and anti-trans legislation in Republican-controlled states raised the urgency for blue state lawmakers.

“I think states should not be afraid to act forcefully and quickly to defend their residents,” he said. “We faced initial resistance and hesitation from people who thought that maybe we don’t need to move too far too fast. But ultimately, we’ve been proven right over and over again.”