Texas Suit Against New York Doctor Ushers in New Era of Abortion Litigation

Texas has one of the nation’s most stringent abortion bans. Now, it’s going after a New York doctor who mailed abortion pills to a Texas resident — and launching a new era in state court litigation over abortion.

Texas’s attorney general is suing the doctor, Margaret Daly Carpenter, in state civil court, claiming she practiced medicine in Texas without a Texas license and improperly aided an abortion. The attorney general seeks to bar her from doing so again and asks for at least $100,000 in damages.

The case, and any future ones like it, will involve complicated legal questions, including whether a Texas judge can even hear the case and whether New York or Texas law should apply — foreshadowing the types of questions we might increasingly see in abortion-related cases.

As an initial matter, state judges will have to confront difficult issues of personal jurisdiction, which addresses when courts have power over the individuals involved in a case. Is it fair to allow a Texas judge to hear the case, given that Carpenter is based in New York and offers telehealth services from that state? There are constitutional limits on state courts’ jurisdiction over non-residents unless a defendant has “minimum contacts” with the state such that it would be reasonable to expect the defendant to address the suit in that state. Texas courts may conclude that Carpenter had adequate contact with the state if she mailed pills to patients within its borders, but the same may not be true of defendants in potential future cases. What will happen, for example, if conservative attorneys general target doctors in blue states for treating residents from anti-abortion states who crossed state lines for care?

Cases like Carpenter’s also involve conflicts of law, the legal field addressing which state’s law should apply when more than one state has a stake in the outcome. Judicial decisions on conflicts of law scholarship are complex, making it hard to predict how state courts will resolve critically important questions.

In the context of cross-border tort suits, modern approaches consider where the parties are based, where the relevant conduct occurs, and where an injury takes place. But Texas’s suit is not a tort matter; it’s a state civil enforcement action, and may involve different considerations. Conflicts of law principles won’t necessarily apply the same way if an attorney general criminally charges an out-of-state defendant for assisting a patient from a ban state either. And these factors might cut in different directions when an abortion patient is domiciled in a ban state but travels elsewhere for an abortion versus when a physician mails pills into a jurisdiction.

In Carpenter’s case, should a Texas court apply Texas’s law to evaluate whether Carpenter did anything wrong, even when New York establishes protections for her conduct? Texas will argue that it has powerful interests in protecting unborn life or preventing women from having abortions, while Carpenter could invoke New York’s state constitutional protections for reproductive liberty and equality.

Texas courts are likely to apply Texas law. Conventionally, in cases involving telehealth, the law where the patient is based applies. The abortion at issue — which Texas would consider an injury to fetal life — took place in Texas. And one of the parties is domiciled there.

Other cases might look quite different. Anti-abortion groups are recruiting men to sue a range of defendants who assisted their partners or ex-lovers in seeking abortion. Texas Right to Life has suggested that some of these plaintiffs will target out-of-state doctors who mail pills into Texas. What if one of these men, angry that his partner procured an abortion in New York or California, sues the doctor who performed it? New York and California have “shield laws” that protect health care providers and others who help out-of-state abortion seekers. Under some shield laws, those who are targeted for the exercise of protected conduct can counter sue through so-called clawback lawsuits — sometimes, even before a final judgment is reached in the case against the doctor. Anyone being sued by a private party could in theory negate the effects of a judgment in an anti-abortion state by winning a clawback suit in a shield jurisdiction. Shield laws contain provisions that aid plaintiffs in clawback suits, such as measures requiring their own courts not to apply the law of ban states in adjudicating interstate disputes. And they often specify that even in telehealth cases physicians and patients are seen to reside in the same state — making a stronger case that a shield state should apply its own laws.

There are possible criminal cases on the horizon too. Unlike in a civil suit, where a state like Texas could enter a default judgment even if a defendant never sets foot in a state, a criminal prosecution would require a defendant to be physically present before proceedings can begin. Some states have statutes allowing for extradition even if the defendant was never in the prosecuting state. Shield laws seek to address this issue by exempting lawfully provided reproductive healthcare; some apply these protections only to doctors, while others apply to non-medical professionals who help abortion seekers. Ban states might invoke the Extradition Clause of the Constitution, which requires states to send defendants to other states under some circumstances. Shield states may argue that this constitutional mandate applies only to defendants who did something illegal in a ban state and then fled, not to defendants who mailed pills or offered services to out-of-state patients in states where abortion is protected.

In these potential criminal cases, state courts will also have to consider whether shield states must cooperate with litigation and investigation in ban states. Almost every state has adopted a version of model legislation facilitating interstate cooperation in investigations. But shield laws carve out varying exceptions in criminal matters. Some shield states seek to protect residents from being summoned to appear in any proceeding involving reproductive healthcare that is lawful in the shield state; other jurisdictions apply these protections only in criminal cases. In criminal cases, shield states also allow residents to resist subpoenas, which are used to force someone to testify or provide evidence in a proceeding that is already under way. State courts will likely confront clashes arising when one state refuses to comply with another’s investigation.

These will not be run-of-the-mill conflicts of law. Texas Right to Life is planning to find plaintiffs to bring wrongful death suits on the theory that the fetus is a person entitled to protection. These plaintiffs will ask state courts to weigh in on the status of the fetus — as the Alabama Supreme Court in LePage v. Center for Reproductive Medicine did in the context of IVF and a state wrongful death statute. To the extent that the domicile of the parties plays a central role in choice of law analysis, conservative plaintiffs may argue that there are two parties domiciled in the ban state — the patient and unborn child — while only the provider resides in the state that protects reproductive rights, and that therefore the ban state’s law should apply even if a patient travels out of state to seek an abortion. A shield state will almost certainly disagree about whether the fetus qualifies as a “person” for choice-of-law purposes.

Cross-border abortion conflicts will also end up in federal court, where judges may resolve questions about due process, the right to travel, the Full Faith and Credit Clause, and freedom of speech. But because so many of these disputes will turn on state law, state courts will be ground zero for abortion-related conflicts of law.

Mary Ziegler is the Martin Luther King Jr. Professor of Law at the University of California Davis School of Law.