A 20-year-old woman in Collin County, Texas arrives at the emergency room to address severe bleeding. A health care provider tells the man she’s with that the woman had been nine weeks pregnant.
“The biological father of the unborn child, upon learning this information, concluded that the biological mother of the unborn child had intentionally withheld information from him regarding her pregnancy, and he further suspected that the biological mother had in fact done something to contribute to the miscarriage or abortion of the unborn child,” a lawsuit, filed earlier this month by Texas Attorney General Ken Paxton (R), reads. “The biological father, upon returning to the residence in Collin County, discovered the two above-referenced medications from Carpenter.”
The man, according to the suit, searched a house — the suit does not specify whether the woman or man or both live there — to find evidence that the woman, who had not told him about her pregnancy, had taken mifepristone and misoprostol. From there, and the suit does not detail how, Paxton’s office learned about this situation — the test case he’s been searching for to challenge blue-state abortion shield laws.
The Texan woman was prescribed the medication, the suit alleges, by New York Dr. Maggie Carpenter via telehealth. The state is now suing Carpenter for practicing medicine in Texas without a license.
Experts have been predicting these interjurisdictional clashes for years, ever since Dobbs fell. Many red states immediately enforced anti-abortion regimes, while blue states spun up shield laws to protect their resident patients and providers from those red states’ punishments. Many shield states, including New York, specifically protect abortion providers from out-of-state investigations and prosecutions.
Anti-abortion crusaders like Paxton have been itching for a test case like this one, to probe the murky legal questions around these state-on-state clashes. But he had to wait for a case to fall in his lap — in this case, like many other abortion ones in Texas specifically, by way of a vengeful man eager to turn over his female partner.
“This case was not brought by a woman who said she was harmed, it was brought by a man who supposedly had sex with her and is trying to control what she does,” David Cohen, professor at Drexel University’s Thomas R. Kline law school, told TPM.
The case law around this New York vs. Texas clash is thin, and sometimes contradictory. It’s not even clear that Carpenter will respond to the suit; the New York shield law specifically protects providers who mailed pills into anti-abortion states from being hauled into those states for exactly these kinds of proceedings. If she doesn’t show up, Paxton could ask for a default judgment, which is how courts render a decision when one party doesn’t respond. But how he would enforce a judgment against Carpenter is an open question, and would likely require the cooperation of New York courts. The shield law pushes against that cooperation; the Full Faith and Credit clause of the Constitution, which requires states to honor the judicial proceedings of other states, would seem to press in the opposite direction.
But even that’s not clear cut. “States have to enforce judgment of other states — but one of main exceptions is whether the lawsuit is punitive in nature versus compensatory,” Cohen said of the clause. “This case was not brought by a woman suffering any damages, nor does the guy she had sex with allege to have any damages. It’s punishment, not compensatory, so New York does not have to enforce judgment.”
If the case got to that point, Paxton would have the option to bring that constitutional question into federal court (he initially filed the case in state court, experts believe, because it’s likely to be a friendlier venue for him). That juncture, or any one of many offshoots before it, could put the case on a path to the Supreme Court.
Still, in the 12-page initial lawsuit, there are significant holes. It doesn’t specify, for instance, that the Collin County woman definitely had the pills mailed to her in Texas — only that the man found the medications in the house.
It does, however, include the home address of Dr. Carpenter, a fact that produced gasps when TPM mentioned it during interviews with legal experts.
“It increases the risk to this doctor to have her home address out there like this — it’s really irresponsible,” Cohen said.
This case is likely years away from its conclusion, given the relatively untested legal terrain on which it rests. A sweeping decision in Texas’ favor, though, would certainly result in more forced births, as organizations that mail the abortion pills would likely have to default back to getting stock from overseas, a critical delay for something as time sensitive as pregnancy.
Asked whether other states might play copycat in the meantime, experts said that it’ll depend on whether they can find a case — or a man willing to bring them one.
“It’s giving away the game: It has been about, all this time, men controlling women, and they’re not even pretending anymore,” Jessie Hill, associate dean and reproductive rights scholar at Case Western Reserve University School of Law, told TPM.
Same as it always was. Men believe they are entitled to own women like they would cattle or furniture. And Paxton is about as ugly as it gets.
“The death of empathy is one of the earliest and most telling signs of a culture about to fall into barbarism.” – Hannah Arendt
Your Occasional (but always timely) Reminder …
“They tell you that there’s a war on women. There is no war on women. There may be a war on what’s inside of women, but there is no war on women in this country.”
— Noted humanitarian Dr. “Sleepy” Ben Carson
I guess for the woman that has a war going on between outside forces and what is inside her, I would think that Mr. Carson’s take is a distinction without a difference. She should surely take it as a war against her.
Actually, forced pregnancy. (Republicans want to ban birth control too.)