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Blue states are crafting a new kind of legislation to respond to a dramatic wave of restrictions on abortion access and gender-affirming care across the country. Democrats are invoking the fall of Roe v. Wade as a reason to protect both areas of health care simultaneously — while aiming to create safe havens for those fleeing surrounding Republican-controlled states.

Lawmakers in five states — Illinois, New Mexico, Colorado, Washington, and Vermont, which has a Republican governor although Democrats control the state legislature — plus the District of Columbia have enacted such “shield” laws so far this year.

Connecticut and Massachusetts were the first states to pass this type of shield bill into law last year, according to the Movement Advancement Project, which tracks LGBTQ+ policy. The laws vary in scope and are still evolving as more states, like Oregon and California, introduce their own bills to explicitly combine protections for gender-affirming care and abortion.

However, the unifying theme is that they aim to legally protect patients’ ability to receive care in their state — and to protect both providers and patients from being punished. Advocates say that these kinds of protections are crucial as bans on gender-affirming care and abortion evolve in scope and threaten interstate access to care.

Several states have gone so far as to sign laws protecting patients and doctors from being arrested if they receive or provide care, to shield them from aggressive litigation, or to prevent courts from issuing surveillance orders for investigations into gender-affirming care or abortion procedures.

The new push reflects a growing recognition of the fundamental connections between abortion rights and transgender rights by Democratic lawmakers, advocates say, in terms of bodily autonomy and letting doctors make decisions with patients. The bills are a response to the mounting legislative attacks and rhetorical vitriol Republicans are directing toward transgender rights in statehouses and on the campaign trail.

“These fights are linked by a really simple belief that each of us are the rightful authors of our own life stories,” said Arli Christian, a campaign strategist focused on LGBTQ+ rights at the American Civil Liberties Union (ACLU). “Each of us has the freedom to determine our path in life, each of us has the right to make decisions about our medical care and our bodies without government interference.”

Connecticut was the first state to pass a law protecting from prosecution patients traveling to the state or from civil liability based on laws in their home states, and also shielding Connecticut providers. It did so in April 2022, before the draft leak of the Supreme Court’s decision overturning Roe v. Wade.

“​​We started to put together a suite of protections to essentially make Connecticut a safe haven for safe, legal reproductive health care, including abortion,” said Democratic state Rep. Matt Blumenthal, a co-chair of the legislature’s Reproductive Rights Caucus who drafted and co-sponsored the bill. “And because of the onslaught of laws against gender-affirming care, we included that as well.”

Connecticut lawmakers also recently passed additional protections shielding providers from disciplinary sanctions or other penalties for providing abortion or gender-affirming care to patients coming from states where the procedures are illegal.

“We were very proud that Connecticut was a leader, and that other states saw us as a model,” Blumenthal said. “We’re a little state, but we punch above our weight.”

Polly Crozier, director of family advocacy at GLBTQ Legal Advocates & Defenders (GLAD), who has worked with advocates and legislators to advance shield laws, said that Massachusetts’ law to protect gender-affirming care and reproductive health is what first transformed the conversation on how to simultaneously safeguard against restrictive bills.

Those safeguards include protections for doctors who provide telehealth to a patient in a state where gender-affirming care or abortion is illegal, plus provisions to protect doctors from being extradited if they provide health care to a patient who traveled from a state with bans in place, Crozier said.

As more anti-trans bills are signed into law, states are realizing that they need to act to protect health care within their borders, Crozier said — or they risk the destabilizing effects of whole areas of medicine being criminalized.

Blue states shield those who travel for care

Advocates for abortion access and gender-affirming care say these protections are critical, both for residents of the blue states and those in red states who want to travel for care. The types of care are often linked: The closures of clinics that provide abortion often also impacted access to gender-affirming care, especially after the Supreme Court struck down federal abortion protections. In many places, Planned Parenthood’s clinics are the largest or the sole providers of gender-affirming care.

Kimberly Inez McGuire, executive director of URGE, which advocates for reproductive justice with a focus on young people, said the new, increasingly complex legal and political terrain requires viewing health care access “as an ecosystem issue not necessarily confined by state borders.”

“No one should have to leave the place they love or the people they love in order to be treated like human beings,” she said. “We’re in a time, frankly, of harm reduction, where we can do a lot right to create access in as many places as we can and to protect access.”

Attempts to ban abortion have a longer history in state legislatures than those to restrict gender-affirming care, and Republican legislators are often borrowing tactics from one and applying them to the other. For example, Mississippi’s ban on gender-affirming care prohibits anyone from aiding and abetting patients from receiving gender-affirming care — language similar to abortion restrictions passed in Texas before the fall of Roe.

The evolution of bans on transgender health care means that shield laws that combine protections for abortion and gender-affirming care provide important protections, said Logan Casey, senior policy researcher and adviser for the Movement Advancement Project.

“We’re seeing language in the gender-affirming health care bans that are explicitly taking language from reproductive health care bans about aiding and abetting,” Casey said, meaning patients traveling across state lines, and possibly their friends and family, could be endangered.

New bans on abortion and gender-affirming care for youth have placed both forms of care further out of reach, requiring patients in many states to travel farther — if patients have the ability and means to travel at all — and caused physicians in some states to take their practice elsewhere, depleting health care resources for everyone.

Although advocates are grateful for states creating safe harbors, gender-affirming care is not a procedure, like an abortion, and is individualized — meaning that traveling to get care in a shield law state can be even more difficult, especially for transgender youth.

Alex Petrovnia, founder and executive director of the Trans Formations Project, a volunteer-run nonprofit that tracks anti-trans bills and has begun to track these kinds of laws more closely, feels hopeful that more people are recognizing the severity of the crisis facing transgender people in the United States. However, having protections in some states is not good enough, he said.

“If only certain states are protected, and those are states that are more likely to be whiter, wealthier states, we’re abandoning many of the most vulnerable if we say that that’s good enough,” Petrovnia said. “Many trans people do not have the resources or the ability to just up and move.”

Pushback in Oregon

But the move to tie abortion rights to gender-affirming care has spurred Republicans in Oregon to stage an ongoing, now weeks-long walkout that has thrown the statehouse into chaos and ground the legislative process to a halt.

In the wake of the Supreme Court overturning Roe v. Wade, Democratic lawmakers and advocates in Oregon, a major hub for abortion rights and LGBTQ+ activism, put forth a bill that would make it easier for minors under 15 to obtain an abortion and require insurance companies to cover gender-affirming treatments. The proposed bill would prevent the state from participating in interstate investigations into reproductive and gender-affirming health care and forbid state medical boards from suspending physicians’ licenses if they have been disciplined for providing reproductive or gender-affirming care in states where care is banned.

Cassandra Purdy, political director at Planned Parenthood Advocates Oregon, said the bill came out of a recognition that the same movements and same states banning abortion are also attacking access to gender-affirming care and that many health care centers and clinicians provide both services.

“We really see this as absolutely necessary to do together,” she said. “One, because our whole movement suffers when one group is harmed, but also because this is a very intentional move to attack both these things.”

The state House passed the bill, but Republican state senators, who argue the measure infringes on parental rights, boycotted.

Blair Stenvick, communications manager at LGBTQ+ rights advocacy group Basic Rights Oregon, said Republicans in the state are “emboldened” both by the overturn of Roe v. Wade and the success of Republicans in other states in restricting gender-affirming care for youth.

“I think any bill we tried to pass around these issues, no matter how strong or minor it was, they would have demonized it and made this fuss over it,” Stenvick said. “There are definitely a lot of issues that they are stalling, but I think our bill is the one that they are targeting the most.”

The walkout, currently the longest in Oregon’s history, shows no signs of abating. The state’s legislative session is constitutionally mandated to end June 25.

Red state law also combines abortion, gender-affirming care

Many red states with abortion bans already on their books when Roe fell then turned to passing bans on gender-affirming care in 2023 legislative sessions. But Nebraska, by combining both issues into one bill, provides a new kind of example of how states can apply arguments against abortion rights into other policy areas, said Alison Gash, professor of political science at the University of Oregon.

After a six-week abortion ban failed to pass, Republicans added a 12-week ban into a measure restricting gender-affirming care for trans youth. The ACLU and other groups are suing to block the law, arguing that the state legislature used “unprecedented” tactics to pass an abortion ban and that combining two unrelated issues violates the state constitution. Republican lawmakers in Nebraska argue that restricting abortion and gender-affirming care are linked and that by restricting both, they are “protecting children.”

Nebraska is the first state to take such an action, Casey said. “That was a tactical move made by the bill’s proponents to try to get the bill to pass,” he added.

Blumenthal of Connecticut said the aggressive anti-abortion and anti-trans legislation in Republican-controlled states raised the urgency for blue state lawmakers.

“I think states should not be afraid to act forcefully and quickly to defend their residents,” he said. “We faced initial resistance and hesitation from people who thought that maybe we don’t need to move too far too fast. But ultimately, we’ve been proven right over and over again.”

And make no mistake, if Cannon wants to, she could most likely place such a huge thumb on the scales of justice that it will be impossible for Smith to convince a jury to convict Trump no matter how strong his case may be. As Slate’s Mark Joseph Stern writes:

Cannon can try to rig voir dire [the jury selection process] to help the defense stack the jury with Trump supporters. She can exclude evidence and testimony that’s especially damning to Trump. She can disqualify witnesses who are favorable to the prosecution. She can sustain the defense’s frivolous objections and overrule the prosecution’s meritorious ones. She can direct a verdict of acquittal to render the jury superfluous. She can declare a mistrial prematurely for any number of reasons, including lengthy juror deliberations, and stretch out various deadlines to run out the clock.

All of this said, there is some case law suggesting that, in truly outlandish cases, the 11th Circuit may step in and replace a trial judge. In one 2006 case, for example, that appeals court removed a judge who twice botched the sentencing phase of a criminal trial. As the court wrote, “in light of the two reversals in this case and three other appeals in which we have reversed the same judge for extraordinary downward departures that were without a valid basis in the record,” replacing the judge was warranted. But judges are typically very reluctant to order one of their colleagues off of a case, and the legal standard governing involuntary disqualification of a judge is quite high.

So Cannon is likely to stay where she is. Here’s what that means for Trump’s potential trial.

Cannon’s previous rulings in Trump’s favor suggest that she is in the tank for the former president

Before we dive into the details of why Cannon may be unfit to hear Trump’s case, it’s important to note two factors that do not justify her removal. She is both a Republican and a Trump appointee, but these factors alone do not mandate recusal. And, indeed, there is a long history of federal judges ruling against the presidents who appointed them, including in cases that directly endangered the president himself.

So the fact that Cannon owes her job to Trump is not enough to stop her from presiding over his trial. In order to remove a judge, the 11th Circuit concluded in United States v. Torkington (1989), an appeals court must ask if the judge’s behavior on the bench suggests that they “would have difficulty putting [their] previous views and findings aside.” And even in such a case, the 11th Circuit is often reluctant to remove a judge.

That said, Cannon’s previous conduct in Trump’s case was egregious, and the 11th Circuit twice concluded that she committed multiple legal errors.

Cannon first got involved in this case after the FBI executed a search warrant in August 2022 at Mar-a-Lago, Trump’s Florida residence, and recovered more than 100 documents with classified markings — including one document that, according to the Washington Post, described “a foreign government’s military defenses, including its nuclear capabilities.”

Trump sued, claiming that this investigation must be put on pause, and asking Cannon to appoint a “special master,” a court-appointed official who is sometimes tasked with conducting complicated factual inquiries for the court. Trump wanted the special master to comb through the documents seized by the FBI to determine which of the seized documents should be returned to Trump.

Cannon agreed to appoint such a special master. More significantly, she also prohibited the Justice Department “from further review and use of any of the materials seized from Plaintiff’s residence … for criminal investigative purposes” until the special master completed his review. That decision didn’t simply put this criminal investigation of Trump on ice, it also sabotaged a parallel intelligence investigation that the FBI conducted to determine if and how Trump’s retention of these classified documents harmed national security.

Eventually, the Justice Department brought the case to the 11th Circuit, which unanimously allowed the FBI to continue its investigations into the classified documents while the special master reviewed the remaining seized materials.

Of course, the Constitution’s Fourth Amendment does protect criminal defendants such as Trump from unreasonable searches of their property. No search warrants may be issued unless law enforcement can show that they have “probable cause” to justify a search, meaning that they have good reason to believe their search will uncover evidence of a crime. Law enforcement must present a sworn statement to a neutral magistrate which explains why they believe they have probable cause, and this magistrate must sign off on the warrant before a criminal suspect’s residence may be searched. The FBI complied with all of these obligations in Trump’s case.

Outside of these obligations, however, the 11th Circuit’s precedents rarely permit a court to interfere with an ongoing criminal investigation, and then only when the government has “displayed a callous disregard” for a suspect’s constitutional rights. Yet Cannon conceded in one of her rulings that “there has not been a compelling showing of callous disregard for [Trump’s] constitutional rights.” But she ordered the DOJ to halt its investigation into Trump anyway.

That alone, according to the 11th Circuit, “is reason enough to conclude that the district court abused its discretion in exercising equitable jurisdiction here.”

The 11th Circuit pointed to so many additional errors in Cannon’s decisions favoring Trump that it would be tedious to list them here. But there is one more problem in Cannon’s decisions worth highlighting. A major thrust of her decisions is that Trump was entitled to more protection than any other criminal suspect because he is a former president. This status, she claimed, placed “the stigma associated with” the FBI’s seizure of some of his property “in a league of its own.”

The 11th Circuit had no patience for this argument, holding in a December 2022 order that Cannon never had jurisdiction to hear Trump’s challenge to the search warrant, that the same law applies “no matter who the government is investigating.” This principle, according to the appeals court, flows from a 1794 Supreme Court decision holding that “our law applies ‘to all, without regard to numbers, wealth, or rank.’”

If another judge had committed similar errors, then perhaps those errors could be attributed to inexperience. Cannon is fairly young — she was still in her late 30s when Trump appointed her in late 2020 — and she’d been a judge for less than two years when she handed down her decisions favoring Trump.

But whatever else can be said about Cannon, she was hardly unfamiliar with Fourth Amendment principles governing search warrants when she departed so grievously from them. Cannon spent seven years as a federal prosecutor before becoming a judge, a job that would have required her to develop an intimate familiarity with the rules governing search warrants and seizures by law enforcement.

And yet, despite spending years developing expertise in this area of law, she still botched the Trump case so badly that two conservative panels of the 11th Circuit deemed her work unacceptable. That suggests that her errors may have been intentional, and not merely the product of ignorance.

How much power does Cannon have to protect Trump?

In the likely event that Cannon does not recuse herself from this case, and is not ordered to remove herself by a higher Court, she will have significant power to shape how fast this case proceeds, what evidence is presented to the jury, and who sits on that jury. These rulings often involve subtle decisions that are difficult to challenge on appeal, and that may not even have much impact on the case individually — even if the collective impact of a long series of decisions against the prosecution could destroy their case.

And even if Smith’s legal team does eventually convince an appeals court to reverse any of Cannon’s decisions, appellate courts are normally reluctant to hear “interlocutory” appeals — challenges to a trial judge’s decision that are heard before that judge is finished with the case. Many of Cannon’s errors could not even be reviewed until after Trump’s trial is over.

To give a sense of just how much Cannon could skew this trial in Trump’s favor if she wanted to, consider how jurors are screened in federal court.

Before any jurors are seated, they will be questioned by counsel on both sides of the case, and potentially by the judge, in a process known as “voir dire.” One of the most important purposes of this process is to screen out jurors who may be biased or otherwise unable to evaluate the allegations against a defendant impartially.

As a general rule, a potential juror might be removed from a jury pool for two reasons. Both the prosecution and the defense have a limited number of “peremptory” strikes, which can be used to remove a juror for virtually any reason. Additionally, if a juror’s statements during voir dire suggest that they may not be impartial, either side’s lawyers may ask the judge to remove a juror “for cause.”

In a normal case, for example, the defense might ask for a juror to be removed for cause if the juror demonstrates prejudice toward people who share the defendant’s racial or religious background. The prosecution might ask for a juror to be removed for cause if that juror testifies that they’ve had so many negative interactions with the police that they are inclined not to trust any testimony by a police officer.

But the Trump prosecution is obviously not a normal case, and the judge presiding over it will need to make delicate decisions about which potential jurors can be impartial about one of the most famous and polarizing individuals on the planet. Suppose that a potential juror testifies that they voted for Trump twice and once attended a Trump rally, but that they believe they can still be impartial. Should this juror be removed for cause? What about a Biden voter who donated to the incumbent president’s campaign? Or a juror who testifies that they are a regular Fox News fan? Or a juror who marched in a protest against Trump’s immigration policies?

Trial judges normally have a great deal of discretion to decide which jurors may be included and which jurors must be excluded. So, if Cannon presides, there’s a real risk that she might try to stack the jury with sympathetic jurors. Smith’s legal team could still use their peremptory strikes to remove MAGA jurors, but they will have a limited number of those strikes.

And Cannon would not even need to stack the entire jury to sabotage Smith’s case against Trump, if she was so inclined. The Supreme Court held in Ramos v. Louisiana (2020) that the Constitution “requires a unanimous verdict to convict a defendant of a serious offense.” So Cannon would only need to seat one MAGA juror to ensure that, at the very least, even the strongest possible case against Trump will end in a hung jury and a mistrial.

Voir dire, moreover, is just one small part of a trial. During the rest of the trial, the presiding judge will rule on which evidence can be introduced and which evidence must be excluded, what questions lawyers may ask witnesses and which questions are forbidden, and which witnesses are even allowed to testify.

And, even if Trump is convicted despite potentially biased rulings from Cannon, she will have the first crack at sentencing Trump — and the Supreme Court held in Gall v. United States (2007) that appeals courts must review a trial judge’s sentencing decisions “under a deferential abuse-of-discretion standard.” That means any lawyer challenging a trial judge’s sentencing decision faces a difficult battle.

All of this should come with the caveat that, perhaps, Cannon learned her lesson after she was smacked down twice by an appeals court, and maybe she will be more careful about adhering to the law during Trump’s trial. But her conduct in the litigation over the Mar-a-Lago search warrant should not fill anyone with hope that she will suddenly decide to be unbiased and impartial.

Can Cannon be removed from this case?

There is a chance that Cannon could be removed from the case if Smith seeks to disqualify her, or if the 11th Circuit decides on its own to remove her on appeal. As that court said in the Torkington case, such disqualification “is appropriate where the trial judge has engaged in conduct that gives rise to the appearance of impropriety or a lack of impartiality in the mind of a reasonable member of the public.”

That said, the 11th Circuit has typically required a judge to repeatedly engage in behavior that casts doubt on their impartiality before removing that judge. In Torkington, for example, the trial judge “stated at various times that he felt the taxpayer had little interest in this type of suit, that this prosecution was ‘silly,’ and that it was a waste of the taxpayers’ money.” He also suggested that the prosecution might arise from a “vendetta” against the defendant.

Similarly, in United States v. Martin (2006), another case where the 11th Circuit disqualified a trial judge from continuing to hear a criminal case, the appeals court did so only after it had twice reversed the trial judge’s sentencing decisions — and only after the same judge had been reversed in three other cases for handing down lenient sentences that the appeals court deemed “extraordinary.”

There is no doubt Smith’s team could write a well-reasoned brief, relying on cases like Torkington and Martin, that would make a strong case for disqualifying Cannon. And if the right 11th Circuit panel is assigned to hear a request to remove Cannon, that panel might agree she must be recused.

But the 11th Circuit is also a conservative court — seven of its 12 active judges were appointed by Republicans and six were appointed by Trump. And the standard for disqualifying a judge is very high. Realistically, it is difficult to know how the appeals court would rule on a request to disqualify Cannon. A competent judge could write a decision supporting either outcome.

All of this said, I would hope that any judge asked to review whether Cannon should preside over this case would pay particular attention to one line in Torkington, where the court said that removing a trial judge from a case is sometimes necessary because “the judicial system has the obligation of preserving public confidence in the impartial and fair administration of justice.”

The trial of Donald Trump, a longtime celebrity and former president, is likely to be one of the most closely watched legal proceedings in American history. Every decision the trial judge makes will be scrutinized by a small army of attorneys, many of whom will be nationally prominent experts such as Kerr. Numerous media outlets (including the one you are reading right now) also employ lawyers with considerable expertise in federal courts, who will shine a light on every error committed by the judge in Trump’s case.

The 11th Circuit, in other words, needs to ask itself whether it can trust Aileen Cannon to speak for the federal judiciary in one of the most closely watched tests of its legitimacy that the third branch of government will ever face.

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