Texas wants to force red-state abortion bans into blue states

On Thursday, the state of Texas sued New York physician Margaret Daley Carpenter for providing abortion pills via telehealth to a Texas resident. In theory, this is just a case about a doctor not licensed in Texas providing medical care. What it really is, though, is Texas Attorney General Ken Paxton teeing up an attempt to pierce New York’s shield law, which protects abortion providers from investigations or prosecutions in other states.

For decades, anti-choice advocates pretended their only goal was to return abortion regulation to the states, allowing more liberal states to have expansive abortion rights while red states would get to ban the process. Indeed, that’s supposed to be the core ruling in Dobbs v. Jackson Women’s Health Organization, with Justice Samuel Alito smugly declaring that “[t]he Constitution does not prohibit the citizens of each State from regulating or prohibiting abortion. Roe and Casey arrogated that authority. We now overrule those decisions and return that authority to the people and their elected representatives.”

The problem here is none of that is true. Red states are going to astonishing lengths to try to stop their own citizens from obtaining abortions elsewhere and to demand that blue states honor red states’ laws. In fact, that’s JD Vance’s exact stance on abortion laws. The vice president-elect believes that there should be a “federal response” to enforce state-level abortion bans, musing in 2022 that “hopefully we get to a point where Ohio bans abortion in California and the Soroses of the world respect it."

Generally, states do not get to dictate what happens in other states, nor do they get to try to reach into another state and impose their own laws. However, there is a very shameful historical exception :the Fugitive Slave Act. That law empowered anyone to capture people who were enslavede, even in states that had banned slavery, and return them to their enslaver in states where slavery remained legal. Those states functionally got to impose slavery outside their borders, anywhere in the country.

The parallels to anti-abortion efforts are inescapable. With the passage of SB8 in 2021, Texas set up a bounty hunter system where anyone could sue someone who aided or abetted someone in obtaining an abortion. Dozens of towns in Texas have passed laws banning someone from traveling on their roads on their way to obtain an abortion outside the state. Missouri tried, but thankfully failed, at passing a law that would have let private citizens sue someone who helped a Missouri citizen get an abortion in another state. Idaho passed a travel ban that bars minors from traveling to another state for an abortion unless they have parental consent.

There’s no doubt that Texas is using the case against Dr. Carpenter to force a pro-choice state to adhere to anti-choice laws. And they’re basing this on the flimsiest of premises. A close read of the complaint against Carpenter shows that this lawsuit is not about protecting the unnamed Texas woman who went to the hospital with complications after taking the abortion pills prescribed by Carpenter.

RELATED STORY: Texas bill would reclassify abortion drugs as controlled substances

Rather, the complaint focuses on the biological father, grumbling about how the mother did not tell him about the pregnancy—which, notably, is not a thing that is in any way required. When she began having complications after taking the abortion pills, she asked him to take her to the hospital, at which point the woman and her health issues entirely vanish from the complaint. We learn nothing about the woman’s hospital stay or how serious her condition was.

Instead, we learn the biological father found out at the hospital that the woman had been 9 weeks pregnant and “concluded that the biological mother of the unborn child had intentionally withheld information from him regarding her pregnancy,” and he suspected she had “done something to contribute to the miscarriage or abortion.” He then went to their home and found the medications prescribed by Carpenter. It’s unclear whether the woman had any role in this lawsuit—or is even aware of it.

This dude sounds an awful lot like the Texas man who sued his ex-wife’s friends for giving her abortion pills. It’s about controlling women, not about safety. That’s why we never learn what happened to the woman at the core of this complaint—because Texas does not actually care about the health of pregnant women. Investigations by ProPublica found that three women in Texas have died from complications of miscarriages. Doctors in the state are fearful of providing care for miscarriages because the procedure often involves the same procedures as an abortion, and they can go to prison if the state decides that the treatment did not fall into the very narrow exceptions to Texas’s abortion ban.

What Texas is seeking in this lawsuit is to ban Carpenter from prescribing abortion pills to Texas residents and to impose penalties of at least $100,000 on her. Texas will likely prevail in its own state courts on this case, given that the state supreme court has refused to clarify what constitutes a condition that would allow for an exception to the abortion ban.

While the state could get a permanent injunction against Carpenter prescribing abortion pills in Texas without a trial, imposing those hefty civil penalties requires one. But New York law shields Carpenter from precisely this—which means the Empire State cannot order Carpenter to comply with any Texas court order about the case.

So then what? There’s a strong possibility that Texas will sue New York to force it to comply with Texas law. Disputes between states must go directly to the United States Supreme Court. With a conservative supermajority that hates abortion, it’s difficult to believe that New York would prevail. A loss for New York would pave the way for states with abortion bans to topple shield laws in 18 other states and Washington, D.C. Anti-choice states would then functionally be able to impose their abortion bans on states where abortion is legals.

RELATED STORY: Republicans want to use Texas as a blueprint for banning abortion

Anti-choice state politicians have no intention of leaving pro-choice states alone when it comes to abortion. They’re not going to stop until they make it impossible to get abortions in blue states.

This is not how federalism is supposed to work, but it’s what we’re headed toward now.