Bill protecting reproductive, gender-affirming health care providers in Maine advances to floor

A proposed “shield law” in Maine designed to protect healthcare providers from other states’ bans on reproductive and gender-affirming healthcare advanced out of committee Thursday with a favorable but split vote along party lines. 

The Health Coverage, Insurance and Financial Services Committee voted 8-4, with Democrats in favor and Republicans opposed, to recommend that the Legislature pass the bill. 

“I wish we were not in this situation in the United States,” said bill sponsor Rep. Anne Perry (D-Calais). “I would be much happier if this was not something I felt we needed to do.”

Other states have enacted such laws in recent years to protect providers and patients from legal and professional repercussions from other states’ bans on certain types of healthcare, which has increasingly occurred in Republican-led states since the Supreme Court overturned Roe v. Wade in 2022. 

Abortion is now banned in 14 states, with a handful of others passing restrictions to the procedure earlier in pregnancy than the standard established under Roe. Gender-affirming care has also come under attack, with 22 states passing laws or policies banning this care despite it being supported by every major medical association. 

Last-minute bill to protect reproductive and gender care in Maine draws hours of testimony

So far, 22 states and Washington, D.C. have passed shield laws protecting abortion and eleven of those states and D.C. also have protections specifically for gender-affirming care.

The legislation proposed in Maine, LD 227, would fall in line with the latter. It would protect from litigation health care practitioners or people assisting practitioners who provide gender-affirming health care and reproductive health care services, which are both legal in Maine.

“This is about Maine sovereignty,” Rep. Sally Cluchey (D-Bowdoinham) said of the bill. “We get to make the laws for the state of Maine and other states’ laws can’t trump us.” 

What the Maine bill would, and would not, do

The bill would shield providers from civil actions, foreign judgements and forced testimony, as well as prevent law enforcement from sharing information in out-of-state investigations regarding healthcare activities that are legally protected in Maine.

LD 227 doesn’t change what health care is available in Maine. “Those who do not like the laws we’re covering,” Perry said, “that is a whole other issue.” 

The version of the bill the committee advanced incorporates several amendments that directly respond to concerns raised to the committee. 

In written comments, the Maine Chiefs of Police Association said they had concerns about how the law would impede their work because law enforcement agencies often collaborate. 

“In some cases, requests for assistance are are urgent and time-sensitive, leaving no opportunity for Maine law enforcement to question our law enforcement partners about the genesis of their investigation,” Auburn Police Department Chief Jason Moen wrote on behalf of the association, adding that declining to provide such assistance could break down inter-agency relationships. 

The amended version of the bill clarifies that police cannot knowingly provide information or expend money in connection with an interstate investigation or proceeding that’s trying to impose liability on someone for a legally protected healthcare activity. 

Dismissing threat, Frey tells Republican AGs their policies make shield laws necessary

The amendment also outlines some exceptions. Police cannot provide this information unless they are responding to a warrant or extradition demand on the “good faith belief that the warrant or demand is valid in this state” or when exigent circumstances make compliance impossible. Exigent circumstances are defined as circumstances where the agency “has insufficient time to comply with this section and a compelling need to act as the result of an imminent danger to public safety.” 

The bill also narrows the definition of the “hostile litigation” the bill prevents to legal actions specifically against healthcare providers and those who assist them, rather than any person, which Colleen McCarthy Reid, the committee analyst from the Office of Policy and Legal Analysis, said is a means to emphasize the bill’s intended use following concerns from opponents about the bill allowing for child trafficking and kidnapping. 

The bill does not change existing laws about child custody or parental consent required for minors to access reproductive or gender-affirming health care — a clarification repeated by Reid throughout the work session for the bill on Thursday. 

The amended bill also added further clarity on this point. It now states that the bill may not be construed to conflict with or alter the Uniform Child Custody Jurisdiction and Enforcement Act. Further, it states that if a court finds that a foreign subpoena seeks information related to an out-of-state custody battle of a minor that involves legally protected health care activity in Maine, “the court shall direct the clerk to issue the subpoena.” 

Combating misinformation about the bill

The custody-related claims about LD 227 can be traced back to the main point of opposition to a different proposal, LD 1735, that the Judiciary Committee voted down in January. 

LD 1735 had focused solely on gender-affirming care but was deemed overly complicated and broad by proponents. It went beyond the protections advocates were seeking for healthcare providers and patients, including a provision that would have prohibited Maine from enforcing out-of-state orders to remove a child from a guardian’s care for allowing the child to receive gender-affirming care. 

Although never a part of the text for LD 227, opponents and legislators have continued to raise questions about custody, as well as gender-affirming care itself, though already protected by law in Maine. Planned Parenthood Maine Action fund and other advocates praised Thursday’s vote, but concern about misinformation remains as the bill now heads to the House. 

“It can be really hard to be in a room when people are talking about you as a person and they’re using language that is not supportive and downright hostile,” said Gia Drew, executive director of EqualityMaine. 

“You could hear it in the committee today,” Drew said. “They keep repeating the same things that aren’t connected to the bill and aren’t grounded in the experiences of trans people or the providers who provide this care.” 

Drew, now in her 50s, said that as a child she’d had to deal with gender dysphoria on her own and did not feel like she could talk about it with medical providers. 

“Now we know there are ways to mitigate a lot of different things that happen with folks who are trans or have gender dysphoria, and gender-affirming care is one of those things family and trans youth can talk about with their providers.” Drew explained, “What’s the right thing for you — that’s so important.”

The individualized aspect of this care is often not captured in legislative discussions, Drew said. This care also differs for minors and adults. For the most part, parental consent is needed for minors. A law in Maine passed last session allows for people who are at least 16 years old to receive non-surgical gender-affirming hormone therapy —  not gender reassignment surgery – without a parent’s consent, but only under a set of specific circumstances.  

While discussion about the bill’s contents dominated committee work, there was also a kerfuffle about the legislative process. 

Perry submitted the text for LD 227, previously a concept draft, a month after the Judiciary vote on the other bill and less than a week before its public hearing. While not unique to this bill, legislators criticized the late timing of the language. On Thursday, Perry said she is working with the Legislature’s Executive Director’s Office to introduce new rules about concept drafts for the future.

“This was never my intent to make this secret,” Perry said.

National attention

LD 227 garnered national attention earlier this month after 16 Republican state Attorneys General threatened to sue the state of Maine if the bill passed. 

In a March 11 letter addressed to Maine Attorney General Aaron Frey, Gov. Janet Mills, House Speaker Rachel Talbot Ross (D-Portland) and Senate President Troy Jackson (D-Aroostook), the Republican AGs described the provisions in the bill as “unprecedented” and in violation of the U.S. Constitution’s Full Faith and Credit Clause, which requires that state courts respect the laws and judgments of courts from other states.

Frey called the legal concerns raised “meritless” and an attempt to intimidate proponents. “Unfortunately, shield laws have become necessary due to efforts in some objecting states to punish beyond their borders lawful behavior that occurs in Maine and other States,” Frey wrote in response.

Frey also dismissed the Republican AGs’ claim that LD 227 is unconstitutional “because Maine will honor out-of-state judgments as long as they were issued in accord with basic requirements for due process and the court had sufficient jurisdiction.” Frey added, “Harmony between our states would be best preserved and promoted by the exercise of restraint by all parties seeking to control health care related policy choices in other states.”

Earlier on March 8, days after the public hearing for LD 227, the State House was evacuated when an email sent to state officials claimed bombs had been placed at the State House, the headquarters for the Maine Democratic Party and the homes of bill sponsors Perry and Sen. Donna Bailey (D–York). The email referenced mutilation, which is a common mischaracterization of gender-affirming health care.

Maine Capitol Police determined the threats were a hoax. Days before the hoax, the rightwing account Libs of TikTok also posted about LD 227 to its nearly 3 million followers, including pictures and contact information for Perry and Bailey.

This incident was the third bomb scare at the State House this year, which has led police to take a more proactive approach to security.