“Legal Insurrection,” Proposed Law Would Make Rhode Island Sanctuary State For Abortion and “Gender-Affirming Care”

Posted by Jane Coleman, Tuesday, February 20, 2024 ||  Earlier this month, Rhode Island became one of the latest states to consider legislation that would make it a safe haven for abortion and gender-affirming care.

California was the first to establish itself as a sanctuary state for transgender patients in September 2022, staking out its opposition to other states that banned gender-affirming care. That set the stage for the ongoing battle royale this past year between red states seeking to ban or set restrictions on such care and blue states determined to protect it.

Now Rhode Island has entered the fray, with twin bills (SB2262/HB7577) sponsored by Senator Dawn Euer and Representative John G. Edwards to safeguard access to both abortion and gender-affirming care.

According to GLAD, the legislation is backed by ACLU of Rhode Island, Center for Reproductive Rights, GLBTQ Legal Advocates & Defenders (GLAD), RI Coalition for Reproductive Freedom, Protect our Health Care RI, TGI Network of Rhode Island, the Womxn Project, and Youth Pride.

If passed, the “Healthcare Provider Shield Act” will insulate Rhode Island doctors and their patients from civil and criminal complaints filed in other states that restrict these surgeries and treatments.

Would-be out-of-state litigants will have to think twice before suing Rhode Island doctors and their patients under the proposed new law.

If they do, they’ll risk retaliatory lawsuits. The law creates a cause of action for tortious interference with legally protected healthcare activity. So if someone from another state sues a Rhode Island doctor over performing an abortion or transgender surgery, that doctor can sue them back for damages and attorneys’ fees.

And when they try to gather evidence to support their cases, they’ll hit a brick wall. The new law forbids courts and public agencies from cooperating with their requests for discovery by:

• Blocking discovery in out-of-state hostile litigation — The proposed legislation says a Rhode Island court may not order someone here to comply with out-of-state requests for discovery, e.g., testimony, documents. And a judge may not issue a subpoena in connection with hostile litigation. Nor can it order wiretapping or eavesdropping related to abortion or transgender care. The same goes for search warrants. — That means health care providers and their patients will not have to share information with out-of-state law enforcement agencies or litigants from states where abortion and transgender care are not protected.
• Forbidding any public agency from cooperating with interstate investigations or abortion or transgender care.
• Prohibiting extradition of non-fugitives engaging in legally protected healthcare activitity — For example, in the case of a doctor sued from another state, unless the accused doctor was physically present in the state that seeks to have him extradited and then fled to Rhode Island, the authorities are not allowed to surrender him to that state.

The law also protects doctors from losing their licenses or medical malpractice insurance coverage over their abortion or transgender care services.

Certain lawsuits are exempt from the proposed legislation. Those that would otherwise be valid under existing Rhode Island law are not considered “hostile litigation”:

(iv) Hostile litigation does not include a lawsuit or judgment entered in another state that is based on conduct for which a cause of action would exist under the laws of this state if the course of conduct that forms the basis for liability had occurred entirely in this state, including any contract, tort, common law, or statutory claims.

But such claims—for example, a standard malpractice claim—might be hard for lawyers to prove once they come up against all the barriers to discovery set out in this new legislation, whose purpose, after all, is to thwart out-of-state challenges.

Taken altogether, if passed, the new law will essentially make abortion and transgender healthcare providers an untouchable class of defendants when sued from another state.

And for now, it signals to Democrat voters and donors their lawmakers’ commitment to abortion and gender-affirming care.