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A Texas woman had an abortion in Colorado, now her ex wants to sue her. A state shield law could stand in his way

A Texas man is asking a Texas district court to take legal action after his ex-partner traveled to Colorado to have an abortion. But Colorado’s so-called “shield law” could spark a legal battle.

An attorney for Collin Davis filed a petition with the court in March, as first reported in The Washington Post, asking for permission to investigate and prosecute the woman who allegedly requested an abortion, and others to potentially file a wrongful death claim against everyone involved. in helping the woman obtain the abortion, including the Colorado doctor who performed the procedure.

The claim is allowed through the Texas Heartbeat Act, better known as SB8, which effectively bans abortions after six weeks and asks Texans to help enforce the law through civil suits or by notifying law enforcement. The law allows citizens to sue anyone who “encourages” an abortion, including friends, relatives and strangers – even clinic staff (such as a receptionist) and doctors. The law does not allow patients who undergo abortions to be prosecuted.

Colorado recently passed a law intended to “protect” anyone involved in the push for legal abortion from such investigations in other states.

“This is exactly why we passed our shield bill,” State Rep. Meg Froelich, co-sponsor of SB23-188, also known as Protections For Accessing Reproductive Health Care, told CPR News. “This is exactly the situation we imagined, and it has happened again and again.”

The purpose of the 2023 law was to ensure that people in surrounding states, such as Texas, can come to Colorado for an abortion. Some states bordering Colorado, such as Wyoming and Oklahoma, have also passed abortion bans. It remains to be seen whether Davis’ petition will challenge Colorado’s law in court.

Davis’ attorney in the case, Jonathan Mitchell, represented Donald Trump during the former president’s battle to remain on the Republican Party’s primary ballot in Colorado after the Colorado State Supreme Court declared him ineligible. That case went all the way to the U.S. Supreme Court. Mitchell is a well-known opponent of abortion rights and helped create SB8 in Texas.

“The Attorney General’s Office will continue to defend a patient’s right to access health care and a physician’s right to practice medicine in Colorado,” Attorney General Phil Weiser’s office told CPR News. “Texas law does not regulate how women receive abortion care in Colorado.”

Texas’ SB8 is unique in that it asks citizens, not state officials, to enforce the law

“Any person, other than an officer or employee of a state or local governmental entity in this state, may bring a civil action against any person who: (1) performs or induces an abortion in violation of this subchapter; (2) knowingly engages in conduct that promotes or encourages the performance or solicitation of an abortion, including paying or reimbursing the cost of an abortion through insurance or otherwise…” the Texas law reads.

“We thought it was angry boyfriends, jealous husbands, a whole host of things; employers who want to know what you did over the weekend,” Froelich said when asked Monday about the Texas case. “It’s none of their business.”

Section 6 of the Colorado Shield Law “prohibits a court, judicial officer, court employee, or attorney from issuing a subpoena in connection with a proceeding in another state concerning a person accessing a legally protected health care activity in Colorado or a person who: assists or assists in the conduct of a legally protected health care activity in Colorado.

Section 7 of the law also “prohibits the state from applying the law of another state to any case or controversy heard in the state court of Colorado….”

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Hart Van Denburg/CPR News

Democratic state Rep. Meg Froelich listens during a House State, Civil, Military and Veterans Affairs Committee hearing at the Capitol, March 6, 2023.

“There has been no compliance with out-of-state subpoenas by our local law enforcement,” Froelich said. “The law is the law. None of our law enforcement agencies are required to comply with an out-of-state subpoena for something that is very explicitly legal in Colorado.”

More than a dozen states have passed so-called shield laws since the U.S. Supreme Court’s “Dobbs” ruling, which overturned Roe v. Wade and left abortion rights to be decided at the state level.

Gov. Jared Polis signed an executive order in 2022 following the “Dobbs” decision that prohibited state agencies from cooperating with out-of-state investigations related to reproductive health care. The 2023 bill codified that order into law and blocked the execution of court summonses, subpoenas and search warrants in Colorado that come from states that decide to prosecute someone for having an abortion.

CPR’s Bente Birkland and Texas Public Radio’s Jerry Clayton contributed reporting.