Texas, known for its stringent abortion restrictions, is spearheading a new wave of legal challenges that extend beyond its borders, targeting out-of-state abortion providers. A recent lawsuit against a New York doctor who mailed abortion pills to a Texas resident highlights the escalating conflict and raises complex legal questions about jurisdiction, state law, and the future of abortion access in the US.
In February, a Texas judge ordered Dr. Margaret Daley Carpenter, a New York-based physician, to cease prescribing abortion medication to Texans and imposed a $100,000 penalty. This default judgment, issued due to Dr. Carpenter’s non-appearance, marks a significant escalation in Texas’s efforts to enforce its abortion ban beyond its physical boundaries. The lawsuit alleges that Dr. Carpenter was practicing medicine without a Texas license and illegally facilitated an abortion, seeking to prevent her from future actions and demanding substantial damages.
This case, and others anticipated to follow, delves into intricate legal territory. A central question is whether a Texas court possesses the authority, or personal jurisdiction, to adjudicate a case against a doctor operating legally in New York, offering telehealth services from that state. Constitutional principles limit a state’s jurisdiction over non-residents unless they have sufficient “minimum contacts” with the state, making it reasonable for them to be subject to its legal proceedings. While Texas argues that mailing medication into the state constitutes sufficient contact, future cases, particularly those involving patients traveling out of state for abortion care, may present different jurisdictional challenges. Imagine conservative attorneys general targeting doctors in states with abortion protections for treating patients who traveled from states with bans – the jurisdictional lines become increasingly blurred.
Furthermore, these cases trigger “conflicts of law” issues, determining whether Texas or New York law should govern the situation. Legal precedents for cross-border tort cases consider factors like the location of parties, conduct, and injury. However, Texas’s lawsuit is a civil enforcement action, potentially altering the application of these principles. The legal landscape becomes even more complex in potential criminal cases against out-of-state providers assisting patients from states with abortion bans. Factors like patient domicile and the location of the abortion procedure further complicate the legal analysis.
In Dr. Carpenter’s case, Texas courts are likely to argue for the application of Texas law, emphasizing the state’s interest in protecting fetal life and preventing abortions. They may contend that the abortion’s impact – which Texas considers harm to fetal life – occurred within Texas. Conversely, Dr. Carpenter could invoke New York’s constitutional safeguards for reproductive rights and equality, arguing that her actions were legal and protected within her state. Historically, telehealth cases often apply the law of the patient’s location, strengthening Texas’s legal position in this instance.
Looking ahead, anti-abortion groups are actively seeking individuals to file lawsuits against those who assist women in obtaining abortions, including out-of-state doctors mailing abortion pills into Texas. Consider a scenario where a man sues a New York or California doctor because his partner obtained an abortion in those states. States like New York and California have enacted “shield laws” to protect healthcare providers and those aiding out-of-state abortion seekers. These laws can enable “clawback lawsuits,” allowing defendants in anti-abortion states to countersue in shield law jurisdictions, potentially nullifying judgments against them. Shield laws often include provisions preventing their courts from applying the laws of states with abortion bans in interstate disputes and may legally define telehealth scenarios as occurring within the shield state, bolstering the argument for applying shield state law.
Criminal prosecutions represent another potential escalation. Unlike civil suits, criminal cases generally require the defendant’s physical presence. While some states have extradition statutes even for individuals who were never physically present in the prosecuting state, shield laws aim to protect against this, exempting lawful reproductive healthcare. The Constitution’s Extradition Clause could be invoked by states with abortion bans, but shield states may argue its inapplicability to cases where the defendant acted legally within a state protecting abortion rights.
State courts will also grapple with interstate cooperation in investigations. While most states have adopted legislation facilitating such cooperation, shield laws are creating exceptions in reproductive healthcare matters. Some shield states protect residents from being compelled to participate in proceedings related to lawful reproductive healthcare in the shield state. These protections can extend to resisting subpoenas, potentially leading to clashes between states with differing abortion laws and enforcement priorities.
These legal battles are far from typical conflict-of-law scenarios. Groups like Texas Right to Life are exploring wrongful death suits, arguing for fetal personhood, aiming to persuade state courts to recognize fetal rights, similar to the Alabama Supreme Court’s IVF ruling. In choice-of-law analyses, conservative plaintiffs might argue that both the patient and the “unborn child” are domiciled in the state with an abortion ban, while only the provider resides in a state protecting abortion rights, thus advocating for the application of the ban state’s law even if the patient travels for abortion care. Shield states will undoubtedly contest the legal status of a fetus as a “person” in such contexts.
Ultimately, these cross-border abortion conflicts are likely to reach federal courts, where issues of due process, the right to travel, the Full Faith and Credit Clause, and freedom of speech will be debated. However, because many key legal questions hinge on state law interpretations, state courts will remain the primary battleground in the evolving legal landscape of abortion access.
Image alt text: Legal document showing the State of Texas petition in a lawsuit, related to abortion pills.
Image alt text: Symbolic scales of justice representing legal and ethical balance in abortion rights debate.
Mary Ziegler is the Martin Luther King Jr. Professor of Law at the University of California Davis School of Law.
Suggested Citation: Mary Ziegler, Texas Suit Against New York Doctor Ushers in New Era of Abortion Litigation, Sᴛᴀᴛᴇ Cᴏᴜʀᴛ Rᴇᴘᴏʀᴛ (Jan. 14, 2025), https://statecourtreport.org/our-work/analysis-opinion/texas-suit-against-new-york-doctor-ushers-new-era-abortion-litigation
