From The Texas Tribune:
Since the U.S. Supreme Court allowed states like Texas to ban nearly all abortions, the number of pregnancy terminations in the United States actually increased. This paradox, which pleases abortion advocates as much as it frustrates their conservative counterparts, hinges mostly on pills.
An average of 2,800 Texans receive abortion-inducing medications through the mail each month from states that still allow abortion, according to #WeCount, a tracking project from the Society of Family Planning.
Until recently, abortion-ban states like Texas mostly gnashed their teeth and railed against their blue state counterparts for allowing this underground enterprise to flourish. But now, they’re using lawsuits and legislation to more directly attack these abortion pill providers.
In December, Texas Attorney General Ken Paxton filed a first-of-its-kind civil lawsuit against a New York doctor for allegedly prescribing abortion pills to a Texas resident, setting up a conflict between Texas’ abortion ban and New York’s shield laws. Legislators are filing bills for the upcoming session that would give the state more tools to try to root out this practice. And they do all of this knowing the incoming Trump administration has their back.
“We’re getting to the point where, if we don’t start swinging, start adopting new tools, these websites and the 20,000 abortion pills coming into the state [each year] are going to become the new status quo,” said John Seago, the president of Texas Right to Life. “I don’t judge legislators for trying something that doesn’t work. But we are demanding that they start swinging.”
The lawsuit strategy
In 2023, on the eve of the first anniversary of the Dobbs decision, New York Gov. Kathy Hochul signed into law a sweeping set of protections for abortion providers. The shield law meant New York wouldn’t cooperate with another state’s efforts to “prosecute, penalize, sue one of our health care providers who prescribed abortion medication,” Hochul said.
“You can continue hell-bent down your path on continuing this radical behavior,” she said, addressing anti-abortion states like Texas. “But we’ll be just as hell-bent on stopping you.”
Almost immediately, providers in New York joined those in Massachusetts, California and other shield law states in providing abortion pills via telehealth appointments and mail-order pharmacies to patients in abortion-ban states. The health care they provided was fully legal in the state they were based in, but clearly illegal in the states their patients are based in, and they undertook this work knowing they were courting legal challenges.
If anything, it’s a surprise how long it took, said Mary Ziegler, an abortion legal historian at UC Davis School of Law.
“Everyone has been expecting this and preparing for this,” Ziegler said. “And it’s no surprise that it’s Texas that brought this first suit.”
In mid-December, Paxton filed a lawsuit in Collin County alleging Dr. Maggie Carpenter, the founder of the Abortion Coalition for Telemedicine Access, provided a Texas woman with abortion pills in violation of state law.
Carpenter’s group not only provides direct patient care but also advises other shield providers on technical and legal support. The group was co-founded by Carpenter, Dr. Linda Prine and Julie Kay, a former ACLU attorney who led the lawsuit that overturned Ireland’s abortion ban.
“This is someone who is part of a network, part of a movement,” Ziegler said. “They’re prepared for this test of the shield law.”
But Texas was prepared, too, and legal experts are not certain how exactly this will play out. Nothing in New York’s shield law prevents a Texas court from hearing a case against a New York doctor, said Paul Schiff Berman, a law professor who specializes in conflicts of state law at the George Washington University law school.
If Carpenter doesn’t show up to the hearing, Paxton’s office will likely ask the court for a default judgement. If that is granted, Paxton can ask a New York state court to enforce it, which is where the shield law may come into play.
But much of the shield law’s protections are about protecting doctors from criminal investigations and regulatory consequences, like losing their medical licenses. In a civil suit, like the one Paxton has filed, it’s much harder for one state to undermine another’s ruling, Berman said. The U.S. Constitution specifically requires that a civil judgement issued in one state, like Texas, is enforceable in all states, regardless of their other laws.
This clause applies most clearly to private lawsuits — if a court orders you to pay someone you’ve harmed to make them whole, that judgement is enforceable no matter where you live.
“You don’t want it to be that if I sue you and win in Texas, and you flee to New Mexico, that I have to sue you all over again in New Mexico, and then you flee to California and it starts again,” Berman said.
But when it’s a state, not an individual, bringing the lawsuit, the judgement may not be as easily enforced. There’s an exception for “penal judgements,” when one state is using a civil lawsuit to try to enforce their state laws.
“This is clearly not just one random person suing another random person,” Ziegler said. “New York’s best argument is that this is the state of Texas enforcing its abortion policy through a lawsuit, which is a penal judgement, and they wouldn’t have to deal with that.”
But this is a rarely litigated question the federal courts haven’t meaningfully waded into in decades. Complicating matters further is a provision in New York’s shield law that would allow Carpenter to sue Texas right back, opening the door to more questions about sovereign immunity and state-on-state litigation.
It is, put simply, “a mess,” Ziegler said.
“If New York wins, as in they don’t have to enforce the judgment, that doesn’t mean that the state 100% would know what happens with other types of defendants,” she said. “And if Texas wins, I don’t think that’s going to be the end of abortion pills, or necessarily a guarantee that Texas’s abortion rate will plummet. There are no quick fixes.”
Seago, with Texas Right to Life, agrees. He sees the Carpenter lawsuit as a “very encouraging step,” but said there’s no one legal strategy that will bring the practice of mailing abortion pills into Texas to a stop.
“There’s a long list of areas of law that have not been tested, and areas where we need to start getting precedent,” he said. “We need to start getting some specific fact patterns before judges for them to determine whether some of the laws we already have on the books apply.”
Some of these lawsuits will be brought by Paxton’s office, but Seago said he anticipates private wrongful death lawsuits, as well as lawsuits against people who “aid or abet” in illegal abortions, as prohibited by Texas’ ban on most abortions after about six weeks of pregnancy.
“There’s no silver bullet,” he said. “These are really difficult cases because these websites are run by individuals and others in other countries, their websites, their domains are out of our jurisdiction, the pharmacies they are using are outside of the country as well.”
The legislative approach
Last legislative session was the quietest in decades for abortion. After successfully banning nearly all abortions, Republicans were wary about continuing to push an issue that is widely unpopular with voters.
This session, coming off a Republican rout in November, Seago is hopeful that lawmakers will feel more empowered to continue restricting abortions, and especially abortion pills.
“Texas is uniquely positioned to lead on these cutting-edge pro-life issues,” Seago said. “Some of our friends in red states are still playing defense. They’re fighting off constitutional amendments. They’re still fighting off exceptions to their laws. We’re in a solid place to start fighting back.”
Texas has no mechanism to put a constitutional amendment to increase abortion access on the ballot without the approval of lawmakers, and while Democrats have filed bills to add more exceptions to the abortion laws, they are once again expected to not get any traction.
But whether conservative efforts to further restrict abortion pills will take hold also remains to be seen. Rep. Nate Schatzline, a conservative Republican from Fort Worth, has filed House Bill 1651, which would make it a deceptive trade practice to send abortion pills through the mail without verifying that they were prescribed by an in-state doctor after an in-person exam.
Another bill, HB 991, filed by Republican Rep. Steve Toth of The Woodlands, would allow lawsuits against websites that provide information about obtaining abortion pills. Elisa Wells, co-founder of Plan C, an information repository about telehealth abortion access, said they expect any challenge to their work to run afoul of free speech protections.
“Texas is a state that values free speech, but despite that, they’re taking action to try and limit free speech with respect to abortion,” she said. “It’s a bit hypocritical.”
Wells said they take seriously any legislation that might further restrict access to abortion in states like Texas. But she said even if all the domestic access routes were shut off by lawsuits and legislation, there are international providers prepared to keep providing pills to people who need them.
“It’s ironic that a lot of these legal actions and court decisions and attempts to restrict access are what is shining a spotlight on … the fact that abortion pills are available by mail,” she said. “Every time there’s a decision like that, we just see the traffic to our site just exponentially increase. These anti-choice actions are the best advertisement.”
The federal allies
After the overturn of Roe v. Wade, the Biden administration took steps to shore up abortion access and protect providers and patients in states where the procedure remained legal. The incoming presidential administration is expected to undo most of those protections and more vociferously go after entities that are attempting to help people skirt state abortion laws.
One open question is whether Trump will direct the Food and Drug Administration to revoke the approval of mifepristone, a common abortion-inducing drug that conservatives tried to get moved off the market. The U.S. Supreme Court rejected those efforts, but nothing about that ruling would stop a new FDA from reviewing that approval.
Additionally, many are watching to see whether the Trump administration will issue new guidance on the Comstock Act, a 19th-century zombie law that hasn’t been enforced in decades. The Comstock Act prohibits mailing anything that could be used to facilitate an illegal abortion, which legal experts say could wreak havoc across the medical supply chain.
While trying to enforce the Comstock Act would spark significant legal challenges, it is a much more direct route to shutting down the infrastructure these shield providers have built, Ziegler said.
“This lawsuit [from Texas] isn’t likely to change much of these shield providers’ behavior, because they’ve been expecting this,” she said. “But there’s much more anxiety about the possibility of Comstock prosecutions, because those would be federal charges.”
