New York’s Abortion Shield Law Survives First Challenge by Texas

You’re reading State Court Report’s biweekly newsletter. Subscribe to receive it in your inbox.

When the Supreme Court overturned Roe v. Wade in 2022’s Dobbs decision, the dissenting justices warned that “interjurisdictional abortion wars” were coming. Travel, telemedicine, and other cross-state interactions would raise complex legal questions about which state’s laws govern. 

Last week, a New York trial court ruled against Texas in an ongoing fight over whether New York must recognize Texas’s legal judgments against New York abortion providers. 

Back in 2023, New York passed an abortion shield law. Intended to protect both patients and providers, the law places broad limits on New York state and local officials’ ability to cooperate when other states seek to impose civil or criminal liability for abortion care that was either received or provided in New York. 

Notably, that includes telehealth services, such as when a New York provider mails abortion drugs to a patient in a state with an abortion ban. Today, nearly half of all states have some form of shield law, and eight states, including New York, have explicit telehealth protections. Bolstered by these shield laws, patients in states with abortion bans have widely used telehealth abortion services.

Enter Texas. In 2024, Texas Attorney General Ken Paxton brought a civil lawsuit in Texas against a New York doctor, Margaret Carpenter, who had allegedly sent abortion pills to a patient in Texas in violation of Texas law. Carpenter did not respond to the suit, and a Texas judge issued a default judgment against her, ordering that she pay a $100,000 fine plus other costs and interest and issuing an order barring her from providing abortion telemedicine services to Texans. 

The big question, however, was whether Texas would be able to enforce its ruling in New York and collect against Carpenter’s assets. 

As a general matter, under New York, law anyone seeking to enforce an out-of-state judgment must first go through a legal process in the New York courts to “domesticate” the judgment. Texas sought to begin this process by filing papers with a New York county clerk, Taylor Bruck. But Bruck refused to process the filing, pointing to New York’s shield law. 

Texas then filed a state lawsuit against the clerk seeking an order (or for the law nerds among us, a writ of mandamus) requiring that Bruck accept Texas’s submission. To the extent that New York’s shield law barred the clerk from doing so, Texas argued that the law ran afoul of the U.S. Constitution’s Full Faith and Credit Clause. New York “cannot assert that its public policy provides an exception to the full faith and credit due to a Texas state court judgment,” Texan lawyers argued.

Last week, in Texas v. Bruck, New York State Judge David Gandin dismissed Texas’s case. Carpenter’s conduct fell squarely within the shield law’s ambit, the court reasoned. And because the law barred state or local government employees from using any “time, resources, equipment or personnel” in furtherance of a proceeding seeking to impose liability on Carpenter, Bruck was legally barred from processing Texas’s filing. 

But it was Texas’s constitutional claim that had the potential to be a legal blockbuster, and there the court punted on procedural grounds. While Texas raised the Full Faith and Credit Clause in its briefing, its petition to the court did not mention any constitutional challenge to New York’s shield law. The court ruled that the constitutional question was therefore “not at issue” in the proceeding. 

Even if the court’s procedural ruling allows the New York courts to avoid addressing Texas’s constitutional arguments in Bruck, however, Texas’s Full Faith and Credit arguments are looming for future cases. 

In an 1892 case called Huntington v. Attrill, the Supreme Court laid out a framework for states’ full faith and credit obligations, explaining that states need not recognize judgments that are “penal” in nature from other states. This applies pretty clearly to criminal penalties, but the Court also indicated that civil laws with a penal purpose would also qualify. 

But as UCLA law professor Lindsay Wiley has explained in State Court Report, existing precedent for what counts as a penal purpose is slim. Wiley argues that the relevant question should be whether a civil judgment “punishes an individual in the name of protecting public morality and the health and lives of future pregnant patients.” If courts adopt Wiley’s formulation, cases like Carpenter’s would likely fall outside states’ full faith and credit obligations. 

Ultimately, it’s a question that’s almost certain to eventually land in the Supreme Court. The interjurisdictional abortion wars are only just beginning. 

Alicia Bannon is editor in chief for State Court Report. She is also director of the Judiciary Program at the Brennan Center for Justice.