Topline
Texas filed a civil lawsuit Friday against a doctor in New York who mailed abortion pills to a Texas patient, threatening a key way patients in states with abortion bans have maintained abortion access and marking a new escalation in anti-abortion advocates’ legal fight as they reportedly ramp up their efforts in the wake of Donald Trump’s election.
Pro-abortion rights protesters march outside the Texas State Capitol on Sept. 1, 2021 in Austin, TX. … [+]
Key Facts
Texas Attorney General Ken Paxton filed the lawsuit in state court against New York physician Margaret Daley Carpenter, who co-founded the Abortion Coalition for Telemedicine.
The lawsuit alleges Carpenter violated state law by treating a Texas patient despite not being allowed to practice medicine in the state, as well as violating the state’s abortion ban that prohibits providing any abortion-inducing drugs.
The civil lawsuit asks for the court to bar Carpenter from treating any other patients in Texas, as well as force her to pay at least $10,000 in damages.
Carpenter is protected legally in New York, where the state passed a law shielding abortion providers who help patients in states with abortion bans—which won’t get her out of the Texas lawsuit, but does mean the state wouldn’t go after her medical license if she’s found liable in Texas or be obligated to cooperate with Texas authorities in any way.
New York’s law also allows her to file a lawsuit against Texas in order to recoup any costs associated with the state’s lawsuit, setting up the possibility of dual competing lawsuits over both states’ abortion laws.
The Abortion Coalition for Telemedicine has not yet responded to a request for comment.
What To Watch For
It’s unclear how long it will take Texas’ lawsuit to play out or how it will be resolved. Legal experts cited by the Texas Tribune in September were divided on how such interstate disputes over issues like abortion or gender-affirming care could play out, noting that courts haven’t considered issues about divergent state laws on this scale since the days of slavery. “States have very different policies on lots of different stuff, but they tend to just keep those policies within their own borders,” University of Virginia School of Law professor Darryl Brown told the publication. “What’s unusual here and what was unusual about slavery is that states were extending their own policy or enforcing their own policy in states that didn’t agree with them.”
What We Don’t Know
How far anti-abortion advocates will go. Texas’ lawsuit marks the first major lawsuit challenging interstate rights over states’ opposing abortion laws, after The Washington Post reported anti-abortion activists are “moving aggressively” to challenge abortion rights in the wake of Trump’s election. “You will see lawsuits filed now that were strategically not filed before the election,” Texas Right to Life President John Seago told the Post. In addition to lawsuits challenging out-of-state medical providers and blue states’ shield laws, the Post also suggests Texas is seeking to have lawsuits brought by men who oppose their partners’ abortions, though the first lawsuit that was brought along those lines earlier this year was dropped in October. State lawmakers could also be more emboldened to enact additional legislation on abortion, with the Post pointing to a bill introduced in Texas that opens internet providers up to legal liability for hosting abortion pill websites.
Big Number
More than 6,000. That’s the number of women in states with abortion bans that are receiving abortion pills from online provider Aid Access each month, the Post reported in April. The total number of abortion pills being mailed into states with abortion bans is much higher, as pill provider Plan C told the Post in November there are more than two dozen organizations in total that are sending abortion pills into restricted states.
How Will Trump’s Election Impact Abortion Pill Access?
Trump repeatedly said ahead of the election that he wants to leave abortion up to the states, playing into public opinion that’s broadly in favor of abortion rights even as opponent Kamala Harris’ campaign warned he would restrict access if elected. Trump has denied wanting to ban abortion pills but has not completely ruled out doing so, telling TIME in an interview published Thursday that while banning the pills is “highly unlikely,” “I guess I could say probably as close to ruling it out as possible, but I don’t want to.” The Post reports anti-abortion advocates are urging the incoming Trump administration to enforce the Comstock Act, a long-dormant 19th century law that bans the mailing of any materials related to abortion. Republicans have advocated using the law to stop abortion pills from being sent through the mail, in contrast from the Biden administration, which issued guidance saying such deliveries are legal. Experts have warned the law could be used to go even further to effectively outlaw abortion, however, by stopping doctors from receiving any equipment needed for the procedure. Trump has so far said he does not plan to enforce the Comstock Act, though abortion rights advocates have raised concerns he could change his plans once in office.
Key Background
Medication abortion—which consists of taking two drugs, mifepristone and misoprostol—has become integral to abortion access in the wake of the Supreme Court’s 2022 ruling overturning Roe v. Wade. People in states with abortion bans can more easily obtain pills through the mail or by picking them up across state lines, versus traveling to an out-of-state clinic for a surgical abortion. Republicans’ attacks on the pills have ramped up in the past two years as a result, with Wyoming becoming the first state to specifically outlaw the medication—though the law was later blocked in court—and anti-abortion advocates taking a lawsuit challenging the pills’ legality to the Supreme Court. The high court ultimately threw the case out because the plaintiffs didn’t have standing, but didn’t rule on the central issue of whether abortion pills should be restricted, and GOP-led states are still pursuing the litigation. The Texas lawsuit also comes as the fight over abortion has long been expected to extend to issues over competing state laws, as the Supreme Court’s ruling has resulted in more than a dozen states banning access to the procedure while other states have explicitly protected access. A Missouri lawmaker sought to punish people for obtaining abortions out of state in 2022 even before the Supreme Court’s ruling, and individual localities have attempted to ban traveling on their roads to obtain abortions in the wake of the Supreme Court’s ruling.
Further Reading
