A lawsuit has been filed by Texas Attorney General Ken Paxton, who claims that a New York physician violated state law by giving abortion medications to a Texas resident.
This lawsuit is the first attempt to examine the consequences of conflicting state abortion legislation. A network of doctors has been able to mail abortion drugs into states that have outlawed the practice because of New York’s shield law, which shields providers from investigations and prosecutions that take place outside the state.
Legal experts disagree on where the courts may rule on this matter, which involves interstate trade, extraterritoriality, and other difficult legal issues that were last substantively addressed prior to the Civil War. Texas has pledged to pursue these claims despite those statutes.
“The real question is whether the courts in New York recognize it, regardless of what the courts in Texas do,” said Greer Donley, a professor at the University of Pittsburgh who specializes in studying such legislation.
In this instance, Paxton claims that Dr. Margaret Carpenter mailed a 20-year-old Collin County lady drugs from New York. The drug was purportedly taken by the woman at nine weeks of her pregnancy. According to the lawsuit, she requested that the man who had impregnated her accompany her to the hospital when she started to bleed profusely. The complaint claims that he was unaware of her pregnancy or her desire for an abortion.
The lawsuit doesn’t specify if the woman had any long-term health issues or was able to successfully end her pregnancy. Carpenter is accused of delivering misoprostol and mifepristone, two drugs that are more than 95% effective if taken before 10 weeks of pregnancy. Abortion laws in Texas forbid criminalizing or targeting the individual who has the procedure.
In addition to ordering Carpenter to pay $100,000 for each infraction of the state’s nearly complete abortion prohibition, Paxton is requesting that a Collin County judge prevent Carpenter from breaking Texas law. Texas has an almost complete ban on abortion; violators risk life in prison, fines of at least $100,000, and the loss of their Texas medical license. Donley emphasized that according to the lawsuit, Carpenter did not violate any laws in her native state.
The complaint alleges that Carpenter lacks a Texas license to practice. She is the founder of the Abortion Coalition for Telemedicine, a nationwide organization that assists physicians in states with shield laws in offering patients in areas where abortion is illegal telemedicine consultations and abortion pills.
After Roe v. Wade was reversed, Carpenter, Dr. Linda Prine, and Julie Kay—a former ACLU attorney who successfully defended the case that repealed Ireland’s abortion ban—founded the organization. They assist physicians seeking to become “shield providers” by offering guidance on legality, pharmacy contacts, data security, and licensing.
Carpenter also helped develop Hey Jane, a telehealth abortion provider, and collaborates with AidAccess, an international medication abortion provider. A request for comment was not immediately answered by Kay or Carpenter.
Since blue states enacted shield laws and red states outlawed abortion, this conflict has been brewing, with many providers willingly accepting the risk of being the test case. Texas perfect to Life president John Seago told the New York Times in February that they were awaiting 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,” the attorney general told the newspaper.
Lawyers who extensively examine these statutes believe that this case is just the kind of circumstance that New York’s shield law is intended to prevent.
Drexel University law professor David Cohen stated, “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.”
According to Cohen, Texas will essentially have no defendant against which to file this lawsuit as New York law mandates the state to refuse to order Carpenter to abide by Texas’ court orders.
“He might go forward to try and get a default judgment, and then they ll have to try to enforce it,” Cohen stated. “But really, we don t know what he’ll do then.”
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