Rather than take judges out of the national debate over abortion, as the 2022 Supreme Court opinion overturning Roe V. Wade promised to do, that ruling has unleashed a new wave of legal questions – including how to settle disputes between the states about whether their abortion laws can be applied outside their borders.
Such a conflict could put abortion back at the high court’s doorstep sooner than the justices may like.
Anti-abortion activists and aligned state and local officials are plotting cases that would force such a confrontation. President Donald Trump’s newly confirmed attorney general said last week she’d “love to work” with the local prosecutor behind one such case.
That case, perhaps the most prominent example, is the criminal charges Louisiana prosecutors recently brought against a New York doctor accused of unlawfully prescribing abortion pills that were used in the state. A warrant is now out for the doctor’s arrest.
That indictment comes on the heels of civil proceedings Texas Attorney General Ken Paxton filed late last year against the same New York doctor, making similar allegations.
Top New York state officials, citing the state’s so-called shield law, have already vowed that they will not cooperate with the proceedings against the doctor.
“This was always going to happen after Dobbs,” said Rachel Rebouché, dean and professor at Temple University Beasley School of Law who focuses on reproductive health law, referring to the 2022 ruling that overturned Roe. “Letting states create their own abortion policies when there’s such division among the states – and their state legislatures – about permitting or restricting abortion creates this tension.”
(A law review article co-authored by Rebouché and others making the case for shield laws, which give legal protections from providers and others who may be targeted by out-of-state prosecutions, helped inspire New York and other states to pass such laws.)
More inter-state disputes may be coming. The anti-abortion movement is expecting wrongful death lawsuits to be filed in the months to come, perhaps targeting providers or others who help a woman obtain an abortion, brought by men whose partners terminated their pregnancies using abortion pills from out of state. There are also legal and legislative efforts underway to go after out-of-state and international groups, like Aid Access, that facilitate access to abortion drug in states that ban it, according to John Seago, the president of Texas Right to Life.
“Our side is happy to see this collision finally taking place,” said Seago. “This conflict is really coming up, and there is a lot of questions to be answered … These shield laws – this legal strategy – has not been tested yet.”
Courts are beginning to draw some lines around a state’s ability to regulate abortion-related conduct outside its borders in the legal challenge to an Idaho law criminalizing the transport of minors out of state to obtain abortions without their parents’ knowledge.
The 9th US Circuit Court of Appeals in December said Idaho can enforce aspects of the law dealing with the physical movement of minors, but said another section, targeting the “recruitment” of minors for out-of-state abortion travel, likely violated the Constitution’s free speech protections.
But the new cases in Louisiana and Texas could bring the cross-border tensions to a head, with both positioned to test the degree to which actors in abortion-friendly jurisdictions can be targeted by anti-abortion states for helping those in within those states’ borders terminate their pregnancies.
“Each one of these cases is going to pose its own legal questions, some of which are going to be pretty novel,” said Mary Ziegler, a University of California, Davis Law School professor who has authored several books about abortion law. “Any of which can be unpredictable, because the Supreme Court, you know, has a penchant for reconsidering precedent.”
Availability of abortion drugs drive tensions between the states
Driving the interstate tensions is the portability of medication abortion drugs, which the FDA approved for use in 2000 and now account for the majority of all US abortions. A major focus on the anti-abortion movement is cracking down on medication abortion, with pressure on the Trump administration to reverse regulations that have been made abortion pills more available and a major lawsuit in Texas seeking to end medication abortion by telehealth nationwide.
While visiting New Orleans last week, Attorney General Pam Bondi was asked by Tony Clayton, the prosecutor behind the case, whether she’d “help” establish “consistency” so “states just can’t harbor fugitives away from folks down here in Louisiana.”
A grand jury in West Baton Rouge, Louisiana indicted Dr. Margaret Carpenter, a provider in New York, late last month, alleging that she broke state law by prescribing abortion drugs that were taken by a pregnant minor, who allegedly suffered complications and ended up in the hospital.
Bondi said she would “love to work” with him, according to Nola.com
CNN reached out to the Justice Department about Bondi’s comments. But one option for the Trump administration would be to revive enforcement of the Comstock Act, a 150-year-old chastity law that could be read as prohibiting the shipment of abortion drugs in the mail. Courts could still reject that interpretation, and the Trump team has dodged questions on whether he’d be willing to take that step.
In the Texas civil proceedings Carpenter also faces, she is accused of violating state laws banning the mailing of abortion drugs and its requirement that doctors treating Texans via telehealth are licensed in the state.
Those proceedings bring the potential of a six-figure judgment against the doctor.
Either case could force a legal confrontation over New York’s shield law. Among other things, the shield law prohibits New York law enforcement from cooperating with extraditions and arrests of someone for charges related to the provision of health care that is lawful in New York. It also bars state officials from sharing information, issuing subpoenas or otherwise assisting investigations into such conduct.
Louisiana could sue New York state if its requests that the doctor be extradited are rebuffed, according to legal experts. Meanwhile, the Texas proceedings against the doctor appear headed toward a default judgment and there’s a hearing on that matter on Wednesday.
Under the Constitution’s full faith and credit clause, states are generally required to enforce final judgements rendered in other states’ courts. But there is the exception known as the “penal exception” that some legal experts say could potentially apply in the context of anti-abortion laws. The Texas lawsuit brings other claims against the doctor as well.
CNN’s inquiries to Carpenter were passed along to the Abortion Coalition for Telemedicine, a group she co-founded, which called the Louisiana case “the latest in a series of threats that jeopardizes women’s access to reproductive healthcare throughout this country.”
“Make no mistake, since Roe v Wade was overturned, we’ve witnessed a disturbing pattern of interference with women’s rights,” the group said. “It’s no secret the United States has a history of violence and harassment against abortion providers, and this state-sponsored effort to prosecute a doctor providing safe and effective care should alarm everyone.”
Clayton, the Louisiana prosecutor behind the case, told CNN that there is now a warrant out for Carpenter’s arrest but declined to outline the next steps his office was weighing.
Seago, the Texas Right to Life president, praised Clayton’s decision to bring the case and told CNN, “It is very difficult to get a district attorney to go this route and to take on a big trend like the shield laws or Aid Access.”
Still, he said, the Texas civil case could present the more direct challenge to New York’s shield laws, as Paxton is bringing a broad case against Carpenter that cites multiple laws, not just the state’s anti-abortion statutes.
Paxton’s office did not respond to CNN’s inquiry. But in the December statement announcing the filing of the civil case, he said that, in “Texas, we treasure the health and lives of mothers and babies, and this is why out-of-state doctors may not illegally and dangerously prescribe abortion-inducing drugs to Texas residents.”
“There was some hesitation for some time about people’s willingness to do this,” Ziegler said. “And that hesitation is obviously gone.”
CNN’s Hannah Rabinowitz contributed to this report.