Bill to shield providers of abortions and gender-affirming care advances after partisan clash

AUGUSTA — Lawmakers voted along party lines Thursday to advance a proposal to shield medical providers who provide abortion and gender-affirming care from hostile litigation by other states.

The proposal, sponsored by Rep. Anne Perry, D-Calais, will head to the House of Representatives for a floor debate in the coming days after the Health Coverage, Insurance and Financial Affairs Committee recommended passage in an 8-4 vote.

Republicans were united in opposition to the bill.

“I’m going to be voting very strongly against this bill,” said Rep. Josh Morris, R-Turner. “There are severe issues both in the substance of this bill, as well as the process by which it was brought forward.”

Morris was referring to the fact that the language of the 21-page bill was not released until less than a week before the public hearing, which resulted in an hours-long session and over 600 comments.

Many of the fears raised in that testimony, however, had little to do with the bill, which aims to protect health care practitioners from hostile litigation from other states that have outlawed or restricted abortion or gender-affirming care.

Since the Supreme Court’s June 2022 ruling in Dobbs v. Jackson Women’s Health Organization upended the 1973 Roe v. Wade decision guaranteeing the nationwide right to abortion, several states have not only banned or restricted access to abortion but have sought to punish their residents who leave their home states to receive abortions and the caregivers who provide them.

Twenty-one states have banned or limited abortion rights since Roe v. Wade was overturned. Twenty-two states have approved laws banning gender-affirming care, according to the Human Rights Campaign.

“This is truly about sovereignty,” Perry said. “I wish we weren’t in this situation in the United States. I would be much happier if this was not something I felt we needed to do.”

If approved, Maine would join 17 states and Washington, D.C., in passing laws shielding health care providers from legal action by states that have banned or restricted abortions. Eleven states and Washington, D.C., have enacted similar laws protecting providers of gender-affirming care.

The bill, L.D. 227, would protect Maine practitioners who are providing legally protected health care in this state from hostile, litigation from out of state. Abortion is legal in Maine and lawmakers last year approved a bill to allow 16- and 17-year-olds to receive limited gender-affirming care, which does not include surgery, without parental consent if they meet specific requirements.

Practitioners providing care that deviates from the medical community’s commonly accepted standards of care, or who engage in criminal behavior, would not be protected under the bill.

If passed, anyone harmed by hostile out-of-state litigation would be able to file a civil lawsuit against whoever filed the suit.

The committee vote came after a discussion that stretched to roughly two hours, primarily because of Republicans who struggled to understand, or refused to accept, that the protections proposed in the bill are narrower than some critics have argued. Unfounded fears about the bill include assertions it would prevent local police from being able to investigate allegations of kidnapping or human trafficking.

Rep. Scott Cyrway, R-Albion, expressed concerns that the bill was an affront to parental rights – an assertion rejected by Sen. Donna Bailey, D-Saco, who has represented parents in custody battles for more than 30 years.

“It not only protects providers,” Bailey said, “but this bill also protects parents who want to get care for their children and that care has been outlawed in the state they live in and they want to come to another state like Maine where it is protected activity and we have providers who are willing to do it.”

The Maine Prosecutors Association testified that the bill would not change any of the underlying state statutes defining legally protected medical care, or negatively impact prosecutions of other crimes, such as kidnapping, trafficking or child custody laws.

“Currently as drafted, the Maine Prosecutors Association does not see any changes to criminal penalties or definitions of crimes that would affect our ability to prosecute Maine’s criminal statutes,” Shira Burns said in written testimony on behalf of the association.

LAW ENFORCEMENT CONCERNS ADDRESSED

The Maine Chiefs of Police Association sent a letter to the committee on Thursday expressing concern about provisions that could limit law enforcement’s ability to cooperate with out-of-state agencies who ask for help in cases involving abortions or gender-affirming care. Law enforcement currently provides assistance “without questioning them.”

“Failing to provide assistance to other law enforcement agencies when requested may have a chilling effect on the relationships we have worked so hard to build and preserve,” Auburn Police Chief and interim association president Jason Moen wrote.

The committee amended the bill in an effort to address those concerns, saying an officer may not knowingly help an out-of-state law enforcement agency to investigate a practitioner based solely on providing care that is legally protected here but not in another state. The amendment provides an exception for exigent circumstances, including an imminent public safety risk.

They also added language to ensure that local law enforcement and prosecutors still would have to comply with federal law, should it conflict with state law.

That provision also seeks to address constitutional concerns raised by 16 Republican attorneys generals, who wrote in opposition to the bill, saying it is “constitutionally defective.”

Attorney General Aaron Frey responded to their concerns by noting that at least 17 other states, plus Washington, D.C., already have similar shield laws.

“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,” Frey wrote. “I welcome your respect for Maine’s ability to decide what access to health care people in Maine receive, free from interference by out-of-state actors.”