Column: States are fighting one another over abortion laws. California could get dragged in
- The state of Texas recently sued a New York doctor for providing abortion medications to a Lone Star resident.
- The case is expected to be the first of many attacking abortion access for women who live in states with bans.
Hello and happy Tuesday. There are 34 days until the inauguration, and today we’re talking about the coming legal war over states’ rights. Of course, this involves Texas — which might not like being messed with, but apparently doesn’t mind messing with others.
You may have a vague memory that access to abortion in recent years has been eroding faster than an oceanfront cliff, ever since the Supreme Court in 2022 gave states the right to set their own rules about reproductive healthcare.
Since then, 13 states have enacted near-total bans on abortion and six states have limits after six to 12 weeks. These laws taken together make it extremely difficult to get an abortion across the southern United States and leave nearly 30 million women living under abortion restrictions. That number includes 57% of all Black women of reproductive age.
Women seeking abortions have two options: Travel out of state, or have medications sent to them, often from a state that protects women’s rights to reproductive care. Since the Dobbs decision, as the Supreme Court’s ruling is known, eight states, including New York and California, have enacted so-called shield laws.
These laws are meant to protect healthcare providers, now know as “shield law providers,” and others involved in giving care — whether in person or via telehealth — from the laws of states with bans.
A lot of these laws, including California’s, offer safeguards such as refusing to cooperate with investigations into providers based in shield states but giving services to those in states with bans; refusing to extradite them if a state with a ban tries to file criminal charges; or giving the right to those sued by states with bans, or individuals, to sue back.
The laws have allowed providers to ship about 10,000 abortion pills per month into states with restrictions (an abortion requires more than one pill, so that’s not 10,000 abortions per month), and provided some measure of relief to women with no other options.
But shield laws are largely in uncharted constitutional waters because until now, states really haven’t fought with one another over dueling laws. In general, the Constitution orders states to cooperate with one another’s court rulings to avoid chaos. But there are exceptions.
Enter Texas.
Last week, Texas Atty. Gen. Ken Paxton sued New York doctor Margaret Daley Carpenter, who provides telehealth abortion care. Carpenter allegedly treated a 20-year-old woman in Collin County, Texas, in July who was about nine weeks pregnant. That woman ended up going to the hospital. (It’s unclear whether she was actually having complications or just had bleeding from the abortion, which is normal.)
The man who impregnated her was unaware she was pregnant. Upon finding out, he went back to the house, found evidence of the medication, and in a series of events that remains unclear, here we are with the state of Texas filing the first challenge to a shield law.
What does that mean? A lot.
Texas vs. New York
Mary Ziegler, a UC Davis law professor who specializes in reproductive healthcare law, told me this is likely to be a complicated case with multiple potential outcomes. But it probably will end up in federal court because of the constitutional issues and make its way to the Supreme Court.
The big issue could be whether New York has to respect Texas law, something that would fall under the Full Faith and Credit Clause of the Constitution. Short answer: Yes, mostly. Maybe not.
“Texas has a somewhat decent case,” Ziegler said, but she added that the bigger issue is “this is not going to be the only challenge to shield laws.”
She expects the coming year to be full of cases attacking shield laws, and shield providers. Ziegler said these cases probably will go far beyond doctors prescribing pills and could include people who travel into blue states for care; Uber drivers who provide transportation; internet service providers that give the knowledge — basically anyone involved in the process of obtaining an abortion.
“We are seeing antiabortion groups actively recruiting plaintiffs,” Ziegler said. “This is not one legal war. It’s a bunch of legal wars.”
Law vs. fear
That, said California Assemblymember Maggy Krell (D-Sacramento), is its own brand of repression. Knowing that all these suits are in the planning has a “chilling effect” for on-the-ground care, she said.
Some providers and patients will simply be too scared to wade into the wars — further limiting access and options. A Texas woman, for example, seeing Paxton’s lawsuit, may think twice about ordering abortion pills lest she be named in a suit. Or a California doctor may decide that being a shield law provider is just too risky.
“Regardless of the legality of this, it is meant to scare providers and scare patients,” Krell said.
But that’s not all
While the shield law cases are grabbing headlines, Krell warns that they probably won’t be the only battleground when it comes to protecting reproductive access.
She points out that incoming U.S. Department of Justice leaders may not share California’s views on reproductive rights, and instead work to curtail access. That could include failing to defend approvals that allow common medications — mifepristone and misoprostol — to be used for abortions, meaning even states that allow abortion could lose the ability to provide them in the safest and easiest manner.
In another case out of Texas, a group of doctors sued the Food and Drug Administration over the use of mifepristone for abortions. The Supreme Court unanimously ruled in June in that case in favor of the FDA — but only because it found the doctors didn’t really have a legal reason for suing because none of them could prove they had personally been harmed by the use of mifepristone in an abortion and therefore lacked standing. That ruling leaves the door wide open for another case with better plaintiffs.
Which means it’s possible that the most commonly used drugs for abortions could become hard to get. When that threat was looming in courts last time, California stockpiled 250,000 mifepristone pills as a just-in-case. But not long ago, the state distributed those pills back in the system because they expire after two years.
Krell has introducted a bill, the Access to Safe Abortion Care Act, that would allow California to once again create a stockpile of abortion medication if we see the threat to its availability is real.
Despite all that heavy news, “I refuse to be your doom and gloom quote,” Krell told me.
California is prepping to fight in the courts if need be, and is determined to protect access to reproductive care.
“We will make these shield laws as strong as we possibly can,” she said.
And I trust California will.
What else you should be reading:
The must-read: Texas’ abortion pill lawsuit against New York doctor marks new challenge to interstate telemedicine
The what’s next: Sudden Loss of Undocumented Workers Threw Tech Supplier Into Upheaval
The L.A. Times special: $1 million, no convictions: New L.A. D.A. to fire Gascón’s police shootings prosecutor
Stay golden,
Anita Chabria
P. S.: If you’re looking for a great tale that has nothing to do with current events, check out this amazing yarn about a cursed emerald and its journey across the Americas by our very own Clara Harter.
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