President-elect Donald Trump hasn’t even settled in for his second term yet, and already Texas has been emboldened to bring the first legal challenge against a post-Dobbs shield law that’s meant to protect abortion providers and out-of-state patients.
On Thursday, the state’s Republican attorney general, Ken Paxton, sued a New York–based doctor for allegedly sending abortion pills to a patient in the Dallas suburbs. The lawsuit, filed in Collin County, claims that Dr. Margaret Carpenter prescribed abortion pills to a 20-year-old unnamed woman in North Texas through telemedicine this past summer, which is in violation of the state’s near-total abortion ban. According to the lawsuit, the woman, who was around nine weeks pregnant, sought medical attention for severe bleeding in July. Which type of medical intervention she received for her symptoms, if any, isn’t specified.
The woman’s presumed partner, whom the lawsuit refers to as the “biological father of the unborn child,” allegedly didn’t know about the pregnancy until that moment, and he says he suspected the patient “had in fact done something to contribute to the miscarriage.” The man returned to their home, where he allegedly discovered mifepristone and misoprostol — the pills used in medication abortion — “from Carpenter,” the suit says. Paxton is seeking $250,000 in monetary relief and a permanent injunction against Carpenter.
New York’s shield law protects Carpenter and other providers by prohibiting cooperation in out-of-state prosecutions and lawsuits, says Elisabeth Smith, director of state policy at the Center for Reproductive Rights, which has advocated for these measures and provided technical assistance to states seeking to enact them. “New York Shield law says to courts, ‘Don’t domesticate a subpoena. Don’t force a witness to testify; don’t force anyone to provide information,’” she adds.
The state seems poised to defend Carpenter from Texas. “As other states move to attack those who provide or obtain abortion care, New York is proud to be a safe haven for abortion access,” New York attorney general Letitia James said in a statement. “We will always protect our providers from unjust attempts to punish them for doing their job and we will never cower in the face of intimidation or threats.”
Today, 17 other states and the District of Columbia enacted similar measures, while legislation is also moving forward in places that protect abortion rights, like Michigan. “The idea for shield laws was really born out of the need to protect abortion providers, abortion helpers, and patients’ medical records in the states where abortion is legal,” says Smith. “No shield law is the same, but they follow a lot of the same principles.” These laws are important given the heightened state of surveillance we live in today, Smith says. “There are lots of stories about pre-Roe providers having a patient come in needing abortion care and then they just didn’t tell anyone about it. There wasn’t a record created,” she says. “The level of surveillance that we live with on a daily basis didn’t exist then.” Patients’ location data, search history, and messages can create a paper trail that could be used against them or their providers in states where abortion is banned, though there are steps abortion seekers can take to protect their digital privacy.
Paxton’s lawsuit is also an attempt to block the mailing of mifepristone and misoprostol into states that ban abortion. In the pre-Roe years, only procedural abortions were available — meaning that if states could control providers, they could stop most abortions from taking place — but science has since advanced enough that most abortions are done with pills, which research has shown are overwhelmingly safe and effective. The drugs have been aggressively targeted by abortion opponents, challenging them all the way up to the Supreme Court. “Since Dobbs, medication abortion prescribed through telemedicine has been an incredible lifeline for people in states like Texas,” Smith says. “The most recent #WeCount study showed that more than 10,000 people a month were receiving telemedicine abortion care from shield-law providers. People were able to determine their futures and their lives because of shield laws.”
It’s no surprise that the state of Texas, which often has led the way in attacking abortion access, is targeting these measures and the doctors they protect. “Ken Paxton is prioritizing his anti-abortion agenda over the health and well-being of women by attempting to shut down telemedicine abortion nationwide. By threatening access to safe and effective reproductive health care, he is putting women directly in harm’s way,” the Abortion Coalition for Telemedicine, which Carpenter co-founded, said in a statement.
The lawsuit comes as abortion opponents anticipate Trump’s return to the White House, where he is expected to implement an aggressive anti-abortion agenda. In South Carolina, lawmakers recently reintroduced a bill that would allow prosecutors to seek the death penalty for patients who terminate their pregnancies. In Tennessee, legislators introduced a measure that would make anyone delivering abortion pills civilly liable for $5 million. And in New Hampshire, lawmakers are seeking to penalize anyone who helps minors access abortion care.
So what happens next? The first question a state court will need to contend with is whether Texas has jurisdiction over the case, says Rachel Rebouché, a reproductive-health-law expert and dean at Temple University’s Beasley School of Law. “This is the kind of situation that shield laws were enacted to protect against,” she says. New York law also allows Carpenter to file a countersuit of her own.
But the suit may have a chilling effect on providers regardless, and creating fear seems to be one of Texas’s goals, Rebouché says. “Maybe they say, ‘I don’t wanna be named in a lawsuit by an attorney general,’” she says. “That’s a totally reasonable reaction to have.” It stuck out to Rebouché that the complaint includes what appears to be Carpenter’s unredacted home address. “That itself is really daunting,” Rebouché adds. “We are in a country where there has been violence against abortion providers, where they’ve been killed. It’s not insignificant for providers who are trying to figure out how they fit into this post-Dobbs legal landscape.”
It’s also significant that the 20-year-old patient who allegedly received the pills doesn’t appear to have brought the information to the Texas government, Rebouché says. Instead, the complaint says it was her presumed partner. “There’s questions of privacy. Would I want my partner rifling through my bathroom trash can, trying to figure out what prescriptions I’m taking, and then reporting it to the state if they thought that I was taking a prescription I shouldn’t take?” she says. “We don’t have someone who said, ‘I’ve been harmed. I’ve suffered an injury.’ It’s telling that it’s not a patient saying that they felt like they received negligent care.”
Smith agrees. “The alleged facts show a clear description of reproductive oppression, both from state law that doesn’t allow people to determine their own lives and also potentially from a partner who seemingly tried to investigate what happened and then shared the information,” she says. Texas has seen other cases post-Dobbs in which men took legal action in connection with their former partners terminating their pregnancies, either by targeting the women themselves or the people who allegedly helped them obtain an abortion. The anti-abortion group Texas Right to Life has also said that it’s seeking more men to bring this type of lawsuit.
The stress-testing of shield laws is just beginning, both Smith and Rebouché believe, and more states could follow Texas’s lead if there’s a favorable outcome for the state. Ultimately, the matter could end up before the Supreme Court. “This lawsuit is designed to ask new questions that have not been answered in this context about how shield laws apply, how they are interpreted, and the scope of power that a state that bans abortion has to try to punish people in their own state courts,” Rebouché says. “These are fundamental questions of federalism, and I don’t expect they’re going to go away anytime soon.”
The Cut offers an online tool you can use to search by Zip Code for professional providers, including clinics, hospitals, and independent OB/GYNs, as well as for abortion funds, transportation options, and information for remote resources like receiving the abortion pill by mail. For legal guidance, contact Repro Legal Helpline at 844-868-2812 or the Abortion Defense Network.
