This New Red-State Lawsuit Against Shield Laws Is a Legal Overreach Unlikely to Succeed at the Supreme Court
Source: Mary Ziegler. "Anti-abortion activists finally overreached at the Supreme Court.." October 6, 2026. slate.com
The Gist
The author argues that a new lawsuit from Louisiana and other red states attacking abortion 'shield laws' is likely to fail at the Supreme Court because its legal arguments are weak and the timing is premature. She also finds it politically strange that Republicans would push this issue right before the midterms, when they've otherwise worked hard to keep abortion out of the spotlight—though she warns people not to get complacent, since shield laws remain vulnerable to future challenges.
Conclusion
The new lawsuit filed by Louisiana, Arkansas, and Alabama challenging abortion shield laws is legally weak and politically misguided, and is unlikely to be the vehicle that brings down shield laws at the Supreme Court—even though shield laws remain vulnerable in the long run.
Premises
- The timing is premature because no shield-state supreme court has yet ruled on how to resolve conflicts between shield laws and abortion bans, meaning the issue hasn't fully percolated through lower courts.
- The full-faith-and-credit argument is not a slam dunk because existing Supreme Court precedent carves out an exception allowing states to refuse enforcement of out-of-state judgments that penalize offenses against the state or its public—exactly what shield states are doing.
- The public nuisance claim is a significant legal reach, since nuisance law has historically applied to things like toxic pollution or blocked highways, not medical services authorized by democratically elected legislatures.
- Public nuisance litigation has a mixed track record even in analogous high-stakes cases like the opioid epidemic, where courts gave an uneven reception to the theory despite near-universal agreement on the harm involved.
- Most Americans support legal abortion and view shield laws as democratically enacted, making it hard to see the Court accepting a nuisance theory against them.
- The political timing is strange because the Trump administration and congressional Republicans have been trying to suppress abortion-related controversies before the midterms, and this lawsuit undercuts that strategy.
- Notably, major Republican attorneys general from Texas and Florida did not join the suit, suggesting even within anti-abortion legal circles there is doubt about this case's viability as the right vehicle.
Assumptions
- Supreme Court precedent on full faith and credit exceptions will be applied consistently rather than reinterpreted to favor the plaintiff states.
- Public opinion and the democratic legitimacy of shield laws will meaningfully influence how the Supreme Court rules on a nuisance theory.
- The absence of Texas and Florida from the suit reflects strategic legal doubts rather than other political or procedural reasons.
- The current conservative supermajority, while sympathetic to challenging shield laws in principle, will still assess this particular case on its specific legal merits rather than using it as a vehicle for a desired outcome regardless of weaknesses.
- The political costs to Republicans of raising abortion salience before midterms are assumed to be real and significant enough to explain the puzzling timing.