Shielding Freedoms: State Noncooperation in Hunts for Evidence and People

The nation is fracturing into a patchwork of rights and punishment. What some states and localities safeguard as rights, other jurisdictions are criminalizing and punishing. As the divides in rights and punishment deepen, some states are becoming sanctuaries for freedoms penalized elsewhere and enacting shield laws prohibiting cooperation with criminalization and punishment states. A prime example is shield laws protecting people seeking to exercise reproductive rights or obtain gender-affirming care.

Major jurisdictions for healthcare and technology-related businesses, such as Washington, California, New York, and Massachusetts, have enacted shield laws that prohibit law enforcement and companies from complying with subpoenas seeking witnesses or other evidence in the investigation or prosecution of abortion or gender-affirming care. This Article is about the rise of resistance by refusal to cooperate with interstate evidence-gathering as the nation fractures over rights protection and punishment. The Article advances the normative case for disrupting the modern march toward collaborating in evidence-gathering across state borders, drawing on history illuminating that comity is not a straitjacket binding states to punitive restrictions nor always desirable. As fierce cultural and legal divides split the nation, interstate comity and cooperation are giving way to the need to protect a higher standard of rights from dissolution and punishment.

The Article envisions how shield laws can expand to cover new challenges, such as using automated license plate reader databanks to hunt for people trying to exercise reproductive rights across state lines or in immigration investigations.