AUSTIN (The Texas Tribune) — Texas Attorney General Ken Paxton has filed a lawsuit accusing a New York doctor of prescribing abortion drugs to a Texas resident in violation of state law.
This lawsuit is the first attempt to test what happens when state abortion laws are at odds with each other. New York has a shield law that protects providers from out-of-state investigations and prosecutions, which has served as implicit permission for a network of doctors to mail abortion pills into states that have banned the procedure.
Texas has vowed to pursue these cases regardless of those laws, and legal experts are divided on where the courts may land on this issue, which involves extraterritoriality, interstate commerce and other thorny legal questions last meaningfully addressed before the Civil War.
“Regardless of what the courts in Texas do, the real question is whether the courts in New York recognize it," said Greer Donley, University of Pittsburgh professor who studies these kinds of laws.
In this case, Paxton accuses Dr. Margaret Carpenter of mailing pills from New York to a 20-year-old woman in Collin County. The woman allegedly took the medication when she was nine weeks pregnant. When she began experiencing severe bleeding, the lawsuit says, she asked the man who impregnated her to take her to the hospital. He had not been aware she was pregnant or seeking an abortion, according to the filing.
The lawsuit does not say whether the woman successfully terminated her pregnancy or experienced any long-term medical complications. Mifepristone and misoprostol, the medications Carpenter is accused of sending, are more than 95% effective if taken before 10 weeks of pregnancy. Texas’ abortion laws prohibit criminalizing or otherwise going after the person who undergoes the abortion.
Paxton is asking a Collin County court to block Carpenter from violating Texas law, and order her to pay $100,000 for every violation of the state’s near-total abortion ban. Violating Texas’ near-total abortion ban comes with up to life in prison, fines of at least $100,000 and the loss of a provider’s Texas medical license. Donley stressed that, based on the complaint, Carpenter did nothing illegal based on her home state’s laws.
Carpenter is not licensed to practice in Texas, according to the complaint. She is the founder of the Abortion Coalition for Telemedicine, a national group that helps doctors in states with shield laws provide telemedicine consultations and abortion pills to patients in states that have banned abortions.
The group was founded after the overturn of Roe v. Wade by Carpenter, Dr. Linda Prine, and Julie Kay, a former ACLU lawyer who successfully argued the case that overturned Ireland’s abortion ban. They support doctors who want to become “shield providers” by advising them on licensure, data security, pharmacy contacts and legality.
Carpenter also works with AidAccess, an international medication abortion provider, and helped found Hey Jane, a telehealth abortion provider. Neither Carpenter nor Kay immediately responded to a request for comment.
This battle has been looming since red states banned abortion and blue states passed shield laws, with many providers knowingly taking on the risk of becoming the test case. In February, John Seago, the president of Texas Right to Life, told the New York Times that they were waiting for the “right case.”
“We can definitely promise that in a pro-life state like Texas with committed elected officials and an attorney general and district attorneys who want to uphold our prolife laws, this is not something that’s going to be ignored for long,” he told the newspaper.
Now that this case is here, lawyers who closely study these laws say this is exactly the type of situation New York’s shield law is designed to combat.
“The New York shield law exists to prevent Texas from having any ability to get someone in New York who is following New York law into Texas court in any way,” said David Cohen, a law professor at Drexel University.
Cohen said New York’s law requires the state to refuse to order Carpenter to comply with Texas’ court orders, which effectively will leave Texas no defendant to bring this suit against.
“He might go forward to try and get a default judgment, and then they'll have to try to enforce it,” Cohen said. “But really, we don't know what he’ll do then.”
