The legal battle over the interstate mailing of abortion pills has begun. On Friday, the Texas attorney general, Ken Paxton, sued Dr Margaret Carpenter, a New York-based OB-GYN and reproductive justice activist, over what he alleges was Carpenter’s choice to mail abortion pills from New York to a 20-year-old pregnant woman in Texas.
The lawsuit, filed in a Texas state court but almost certainly the beginning of a federal legal battle, marks the first formal legal challenge by an anti-abortion attorney general against a Democratic-controlled state’s shield laws, which protect abortion providers from out-of-state liability, and is slated to test how far pro-choice states can go to protect providers within their state borders – and how much force anti-choice states can give to their abortion bans beyond theirs.
The alleged facts go something like this: sometime last summer, a young Texas woman from the Dallas suburbs discovered that she was pregnant, and contacted one of Carpenter’s advocacy organizations seeking access to abortion medication. Carpenter is part of the Abortion Coalition for Telemedicine, or Act, a national network of doctors located in pro-choice states that dispense abortion medication through the mail; she has also worked with the abortion access advocacy groups Hey Jane and AidAccess.
Through the group, Carpenter prescribed the woman the pills, which she took as directed. The woman’s abortion was discovered by authorities after the patient, concerned about heavy bleeding, asked her boyfriend to take her to the hospital. The Texas attorney general’s complaint makes repeated, disconcerting reference to the fact that the boyfriend had evidently not been told about the pregnancy and abortion before this, suggesting that he was entitled to the information or had somehow been wronged.
Doctors like Carpenter have become a central part of the public health and civil rights response to Dobbs. They have stepped in to provide American women with the safety and dignity that their states seek to deny them. An estimated 8,000 women in ban states access pills by mail every single month, getting prescriptions from doctors like Carpenter in safe states and from providers located abroad.
The ability to access the pills this way has meant that the abortions being conducted in these states, outside of clinical settings, are overwhelmingly safe. The pills, that is, keep women from seeking out the much more dangerous illegal surgical abortions, whose incompetent or careless administration by black market providers were the source of large numbers of deaths in the pre-Roe era. Doctors like Carpenter, then, do not merely give their patients control over their own bodies and destinies; in giving them a safe, reliable way to end their pregnancies in ban states, they may well be saving these women’s lives.
It is this safe, effective and accessible form of self-managed abortion that the state of Texas is trying to end. Now, Paxton’s office is claiming that Carpenter, though she never set foot in the state of Texas, violated Texas state law. Further, Paxton believes that Texas’s law can reach all the way to New York: the suit aims to make Texas’s law shape the conduct of people outside its borders, curtailing both Carpenter’s medical practice and her freedom of expression.
Texas’s suit will quickly force a confrontation over one prominent obstacle: New York’s abortion shield law. In the wake of the Dobbs decision overturning Roe v Wade, many Democratic-controlled state legislatures, anticipating an influx of abortion seekers from out of state and lawsuits seeking to prevent women from accessing care in places where it is legal, passed laws seeking to protect abortion providers in their states from lawsuits and prosecutions brought by Republican state governments.
Known as shield laws, these bills prevent any state resources from being used to cooperate with abortion lawsuits and prosecutions. That means that, by law, the state of New York cannot cooperate with Paxton’s lawsuit, and they can’t force Carpenter to do so, either.
This conflict – between New York’s attempt to protect abortion and Texas’s increasingly expansive attempts to eradicate it – is the conflict that will probably arrive in federal court. When it gets there, it will raise some fraught constitutional questions. If Dobbs was based partly on a states’ rights argument, about the freedom of states such as Texas to ban abortion – as Brett Kavanaugh said – then do pro-choice states also have a similar right to robustly enforce their own preferred abortion policy? Or do states like Texas, with their anti-choice agendas, get to have a longer arm, extending their own policy preferences beyond their borders and compelling other states to help enforce them?
The looming conflict over whether states such as New York have a right to protect their abortion providers has reminded some historians of the constitutional conflict that arose over slavery in the 19th century: when enslaved people escaped the south, and made their way to free states, slave states cried foul, and tried to compel the free northern states to kidnap and return the fugitives to enslavement.
The federal government ultimately agreed, resolving the issue with the Fugitive Slave Act of 1850, which forced free states to help slave states enforce slavery by returning escapees to captivity. But in attempting to solve a legal problem, the Fugitive Slave Act created a political one: free states resented the imposition of the slave states’ will on their own policy and functioning, and their anger over being forced to participate in a legal system they found morally abhorrent eventually contributed to the outbreak of the civil war.
In questions of people’s essential freedoms, it is not sustainable for the country to be divided between freedom in some states and unfreedom in others. The two world views – between liberty and restriction, equality and hierarchy enforced by law – cannot abide one another. The country must choose. Now, as Texas seeks to force the issue, it looks like it will eventually be the US supreme court that decides.
Moira Donegan is a Guardian US columnist
