America’s battle over abortion has entered an intense phase of legal maneuvering over a deeply fraught issue of states’ rights: Whether states must honor one another’s abortion laws.
At the center of the fight are abortion shield laws, which were adopted by many states that support abortion rights after the Supreme Court revoked the nationwide right to abortion three years ago. Shield laws in at least eight states protect health care providers who prescribe abortion pills by telemedicine and send them to patients in states with abortion bans.
Officials in those shield-law states are prevented from obeying subpoenas, extradition requests and other legal actions that states with bans take against abortion providers. That is a stark departure from typical interstate practices of cooperating in legal matters.
With more and more patients — well over 100,000 per year — receiving pills from shield-law providers, states with abortion bans have been searching for ways to block or hinder those laws. Now, the battle is about to explode into a constitutional showdown in a New York court — a challenge that is expected to wind up in the Supreme Court.
On Monday, the attorney general of New York, Letitia James, announced that she was stepping into a case filed in New York by the attorney general of Texas, Ken Paxton. The case stems from a lawsuit Mr. Paxton filed in December against a New York doctor, whom he accused of prescribing abortion pills to a patient in Texas.
In court documents, Mr. Paxton argues that New York’s abortion shield law amounts to a “policy of hostility to the public acts/statutes of a sister state” and that it violates the Constitution’s Full Faith and Credit Clause, which says that states should generally respect other states’ laws.
In announcing that she would “defend the constitutionality of the shield law,” Ms. James said that “Texas has no authority in New York, and no power to impose its cruel abortion ban here. Our shield law exists to protect New Yorkers from out-of-state extremists.”
The battle is also playing out on the legislative front.
Last week, Texas legislators passed a bill that allows private citizens to file lawsuits for at least $100,000 against anyone who manufacturers, distributes, prescribes or mails abortion medication to Texas residents. The legislation included language saying that abortion shield laws cannot be considered a legitimate defense, and that countersuits from providers in shield-law states should be blocked.
At the same time, states with abortion shield laws are passing measures to strengthen them.
In June, the New York state legislature passed a bill that supporters are calling “Shield Law 2.0.” It strengthens the attorney general’s enforcement authority, prohibits hospitals and clinics from cooperating with out-of-state investigations targeting reproductive health providers, and ensures that the shield law applies to any provider involved in the care, including therapists.
Several states, including New York, Washington, Colorado and Massachusetts, recently passed measures to allow prescribers to send abortion pills with only the name of their practice in the packages, not their individual names. This month, California legislators are expected to approve a bill that goes even further. It would allow abortion pills to be sent without the name of the patient, prescriber or pharmacist in the package.
One goal of the California bill is to make it harder for states with bans to amass evidence that could be used against shield-law prescribers or others involved in abortions. Another aim is reassure women who are afraid to obtain prescription abortion pills, fearing that they could be identified if their name is on the bottle.
Because a majority of medication abortion services across the country use California-based pharmacies to dispense and ship the pills, the bill would have broad national impact. Without the bill, even if a state like Colorado allowed its prescribers to keep their names off pill bottles, a California pharmacy shipping those pills for the Colorado prescriber would have to follow California’s current requirements to include prescriber names.
“California is the most important state at this moment in history to pass this because of the location of the pharmacies that are dispensing these medications,” said Natalie Birnbaum, the state legal and policy director for the Reproductive Health Initiative for Telehealth Equity and Solutions, who advised on the bill.
There is growing evidence that shield laws are providing robust access to abortion in states that ban it. Reproductive health experts believe the laws are a major reason abortions have not decreased nationwide despite the state bans imposed since the Supreme Court overturned Roe v. Wade in June 2022. Recent studies and reports suggest that about 12,000 patients a month — one-eighth of all American abortion patients — are being served by shield-law providers.
“Medication abortion is extremely popular and safe, and the right has obviously tried to go after that,” said Lizzy Hinkley, an abortion rights lawyer who is an expert on shield laws.
Republican attorneys general have banded together to attack the laws. In July, 16 of them wrote to congressional leaders saying they were “asking Congress to assess the constitutional authority it may have to pre-empt shield laws.” The letter described the laws as “blatant attempts to interfere with states’ ability to enforce criminal laws within their borders and disrupt our constitutional structure.”
However, James Bopp Jr., the general counsel for National Right to Life, said that “congressional intervention is just not really in the cards,” because there likely are not enough votes in the Senate. Lawsuits and legislation in states like Texas have better chances of success, he said.
Mr. Bopp said it was “almost horrifying” that states were bolstering their shield laws. He called shield-law proponents “stark, ravingly mad pro-aborts” and accused them of “immunizing bad behavior.”
Texas v. New York
The most high-profile shield-law battle is the one being waged by Mr. Paxton, the Texas attorney general, in New York, where arguments could begin this fall.
The case began when Mr. Paxton sued Dr. Margaret Carpenter, of Ulster County, N.Y., accusing her of violating his state’s ban by sending pills to a Texas woman.
Adhering to New York’s shield law, Dr. Carpenter and her lawyers did not respond to the lawsuit. A Texas judge then issued a default judgment against her, ordering her to pay a penalty of $113,000 and to stop sending abortion medication to Texas. When Mr. Paxton attempted to have a New York court enforce the Texas judgment, the acting clerk of Ulster County, N.Y., Taylor Bruck, blocked those efforts, citing the shield law.
In July, Mr. Paxton filed a challenge against Mr. Bruck in New York State Supreme Court in Ulster County. “The state of New York, acting through the Ulster County Clerk, should not be permitted to escape the constitutional obligation under the Full Faith and Credit Clause of the U.S. Constitution,” Mr. Paxton wrote in court documents.
On Monday, Ms. James said she would submit a court filing arguing “that Texas cannot commandeer New York’s courts to enforce its punitive abortion laws, and that New York has the legal right and responsibility to safeguard its residents, its providers and its courts from out-of-state overreach.”
Andrew G. Celli Jr., a lawyer representing Mr. Bruck, said the shield law falls under a clear exception to the Full Faith and Credit Clause.
Under what is known as the penal judgment exception, Texas “can’t penalize somebody here for something that New York wants to protect,” said Mr. Celli, a partner in the firm Emery Celli Brinckerhoff Abady Ward & Maazel.
Dr. Carpenter is also facing criminal prosecution in Louisiana, where she is accused of sending abortion pills that were taken by a teenager. New York officials have invoked the shield law in refusing to extradite Dr. Carpenter to Louisiana.
In another strategy — one that some abortion opponents say might be stronger than the constitutional argument — Jonathan Mitchell, a former solicitor general of Texas and the architect of one of the state’s most aggressive anti-abortion laws, has filed the first federal court lawsuits against shield-law providers.
The lawsuits claim that providers and organizations outside Texas violated the state’s wrongful death statute and other Texas laws, as well as the federal Comstock Act, a rarely enforced 150-year-old anti-vice law that abortion opponents want the federal government to use to prevent the mailing of abortion pills.Mr. Mitchell declined to discuss the cases in detail, but, in response to a question about the legal strategy, he said that “shield laws won’t protect abortion providers who get sued in federal court.”
In one of the lawsuits, the boyfriend of a Texas woman is suing a California shield-law provider, alleging that the doctor mailed abortion pills to the woman’s estranged husband and that the husband, whom the boyfriend is suing separately, pressured the woman to take the pills. The California provider, Dr. Remy Coeytaux, declined to comment.
In the other lawsuit, the defendants include Aid Access, the largest organization of shield-law providers and its founder, Dr. Rebecca Gomperts, a Dutch physician. The plaintiff is a Texas woman who alleges that the man she was dating caused her to terminate her pregnancy against her will by tricking her into drinking hot chocolate he had laced with an abortion medication that he ordered from Aid Access.
In a statement, Dr. Gomperts said: “It is deeply saddening that the anti-abortion groups are once again using a woman in very vulnerable circumstances to go after abortion providers.”
The man, Christopher Cooprider, has countersued, disputing the woman’s claims. The police in Corpus Christi said they had investigated, and that they had not found evidence of a crime.
Targeting shield laws is also part of the larger anti-abortion strategy to restrict nationwide access to abortion pills. Shield laws are highlighted in a revised version of a lawsuit in which Republican attorneys general are seeking to compel the Food and Drug Administration to sharply curtail access to the abortion pill mifepristone.
One of the lawsuit’s arguments is that F.D.A. decisions allowing telemedicine prescribing and mailing of abortion pills paved the way for shield laws that have “enabled a 50-state mail-order abortion drug economy.”
Brad Kehr, the government affairs director for Americans United for Life, said that the various actions abortion opponents are taking to target shield laws may involve different theories or approaches, but that all are focused on “the question of the authority of states to govern their own jurisdiction.”
Ultimately, he said, “the courts are going to answer that question.”
Pam Belluck is a health and science reporter, covering a range of subjects, including reproductive health, long Covid, brain science, neurological disorders, mental health and genetics.
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