Nearly three years after the Supreme Court overturned Roe v. Wade, the first criminal charges against providers for alleged violations of state abortion bans have been filed, setting the stage for new constitutional questions that the high court will likely have to answer.
For anti-abortion advocates, the hope is these cases will test the courts in a way that not only keeps the issue at the forefront, but pushes more legal challenges that could lead to further national restrictions on abortion.
“Let’s enforce and let’s have the biggest national debate around it,” Rep. Chris Smith, co-chair of the Congressional Pro-Life Caucus, told NOTUS.
Louisiana and Texas officials have charged Margaret Carpenter, a New York family doctor, for allegedly providing abortion care via telemedicine. She is facing both felony charges in Louisiana, which initiated an extradition request, and a judge in Texas fined her over $100,000 for allegedly prescribing abortion pills to patients in each state. Texas Attorney General Ken Paxton also recently announced the arrest of a Houston-area midwife, Maria Rojas, and two of her former employees, marking the state’s first arrest under its abortion ban.
New York is one of 18 states, plus the District of Columbia, that have laws in place known as “shield laws,” which are intended to protect abortion providers and patients from prosecution from states with restrictions. Any litigation that arises from the Carpenter case could potentially determine the constitutionality of all of these laws.
Gov. Kathy Hochul rejected Louisiana’s request to extradite Carpenter in February, arguing that the doctor is protected by the state’s shield laws, which establish that abortion access is protected in New York. Meanwhile in Texas, Paxton, who is now running for the Senate, asked New York to enforce Texas’ fine, but acting Ulster County Clerk Taylor Bruck, in upstate New York, refused to do so.
“In accordance with the New York State Shield Law, I have refused this filing and will refuse any similar filings that may come to our office. Since this decision is likely to result in further litigation, I must refrain from discussing specific details about the situation,” Bruck said in a statement.
Abby Johnson, a prominent anti-abortion activist, told NOTUS she was happy to see the tides turning in the legal landscape.
“It’s the first time, I feel like, that it’s their laws being challenged,” Johnson said. “It seems like it’s always been our laws that are being challenged in the court, right? It’s always the Supreme Court taking a look at whether or not our laws are constitutional. And I feel like this is the first time things are flipped upside down on their end.”
Rep. Pat Ryan, a Democrat who represents the district Carpenter lives in, said her case brings up concerns about whether abortion has truly been left to the states, as President Donald Trump has argued.
“This is not leaving it to the states. The states are actually encroaching in and threatening” others,” Ryan said. “It’s just a devolution to chaos and a lot of harm.”
Steven H. Aden, the chief legal officer and general counsel at the anti-abortion law firm Americans United for Life, said that the Carpenter cases involve “two real constitutional provisions.”
The first, the Full Faith and Credit Clause, essentially requires each state to respect “public Acts, Records, and judicial Proceedings of every other State.”
“We believe that it’s fairly well established that if a pro-life state obtained a civil judgment against an abortionist for procuring abortion in their state, even from out of state, because of the long-arm jurisdiction statutes, you can’t avoid consequences for causing effects in another state,” Aden said.
The second, the Extradition Clause, prohibits a state from becoming a sanctuary to someone fleeing another state to avoid prosecution.
When it comes to extradition, shield laws work in a “gray area,” Aden told NOTUS. Extradition is required when a person committed a felony in one state and then left to another state to escape prosecution. But when it comes to prescribing abortion pills via telemedicine, the health provider might not be in their patient’s state.
“Causing effects from out of the state, are they subject to criminal extradition? That’s something, I think, the Supreme Court would necessarily have to clarify,” Aden said.
For some state lawmakers who have worked to pass shield laws, that there are now cases to challenge the laws is not surprising.
Rep. Emily Randall, who previously served as a state senator in Washington, one of the states with shield laws, told NOTUS that when writing state bills concerning reproductive health, “we wrote with the fear of that happening.”
She said that lawmakers consult “with the best minds on constitutional law” to “try and figure out how we could write it in a way that would, you know, stand up to that kind of case.”
After Louisiana and Texas went after Carpenter, New York adopted a bill expanding its shield laws to allow abortion pill providers to opt out of having their names on prescription labels. The bill was modeled after a similar one that became law in Washington state last year.
Washington state Rep. My-Linh Thai, who led that bill, said she consulted with experts and health associations in the drafting stage: “We were pretty confident that it wouldn’t be challenged,” she said.
For Johnson, that Texas prosecutors were going after Rojas and Carpenter set “the first example of the law having some teeth.”
“The law is only as good as its enforcement,” Johnson said. “I hope that that will set a strong example to other providers who maybe are doing the same thing, or who are trying to come in from other states, or whatever the case may be, that [Texas] is not the state to do that.”
Smith seemed optimistic about having the Supreme Court evaluate how abortion policy continues to move forward.
But, he told NOTUS, the presence of shield laws “does underscore the need for a national policy” to ban abortion on the federal level.
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Oriana González is a reporter at NOTUS.