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

The national debate over what sorts of health care are legal and protected has centered on Maine, with some state attorneys general condemning a bill that would ensure out-of-state patients and Maine medical professionals who provide reproductive health services and gender-affirming treatments aren’t penalized by other states’ laws.

On Tuesday, Maine Attorney General Aaron Frey responded to accusations that the proposed shield law is unconstitutional by saying the concerns raised are “meritless” and an attempt to intimidate proponents of LD 227.

“Shield laws” protect medical providers and in some cases, volunteers and patients, from legal or professional consequences from other states’ bans on certain types of health care. According to the Guttmacher Institute, 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.

These laws, passed by either legislation or executive decree, have yet to be challenged in court, though that may not be the case for long.

In a letter addressed to Gov. Janet Mills, Frey, House Speaker Rachel Talbot Ross (D-Portland) and Senate President Troy Jackson (D-Aroostook) on Monday, 16 Republican state Attorneys General threatened to sue the state if it passes LD 227. 

According to the letter, which was led by Tennessee Attorney General Jonathan Skrmetti, the provisions in LD 227 are “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.

The AGs also claim that the proposal could “trigger a rapid tit-for-tat escalation that tears apart our Republic.” 

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

In addition to Skrmetti, the letter was signed by the attorneys general of Arkansas, Florida, Idaho, Indiana, Iowa, Kansas, Kentucky, Louisiana, Montana, Nebraska, Oklahoma, South Carolina, Texas and West Virginia. 

With the exception of Montana, each of those attorneys general represent states that have restrictive abortion laws in place. And besides South Carolina and Kansas, their states have also passed bans against what it considered best practice medication and surgical care for transgender youth, with Idaho, Oklahoma and Florida going so far as to make it a felony crime to provide such care. 

The Maine bill specifically aims to protect patients and medical providers from such legal action.

In his response, Frey pointed to an example of “extraterritorial imposition” in the case of Texas Attorney General Ken Paxton issuing investigative subpoenas to a Washington state hospital that he alleged violated Texas law by providing gender affirming care to Texas youths. 

“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.

He 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.”

The amended text of LD 227 was released by sponsors Rep. Anne Perry (D-Calais) and Sen. Donna Bailey (D-York) last week after another version of a shield law was voted down for being overly-complicated. 

Mary Bonauto, Senior Director of Civil Rights and Legal Strategies at GLBTQ Legal Advocates & Defenders (GLAD), pushed back on the Republican AGs’ claims that the proposal is unconstitutional. “States have complete authority on how to control and expend their resources, which is all shield laws like LD 227 do,” she said. 

Bonauto, who successfully argued before the U.S. Supreme Court in the historic same-sex marriage case Obergefell v. Hodges, noted that the bill incorporates exceptions required by the Constitution. “The attorneys general of these states can avoid any of the consequences they fear by not imposing on lawful health care in Maine,” she added. “That is completely within their control.”

Conservative critics of the bill, who have falsely claimed it protects child trafficking, have ginned up significant opposition, drawing a massive crowd to the March 5 public hearing. After the bill was featured by rightwing influencer account Libs of TikTok, it was cited as the reason behind a hoax bomb threat sent last Friday to the State House, Maine Democratic Party, as well as the homes of bill sponsors Perry and Bailey. 

“If there was any doubt that reproductive health care and care for transgender people is under attack in Maine, this threat from out-of-state actors should serve as the latest proof that Maine needs to protect our providers, our health care infrastructure and access to this care,” said Lisa Margulies of Planned Parenthood Maine Action Fund and Planned Parenthood of Northern New England.