Telehealth Abortion and the Supreme Court: The New York-Texas Legal Battle

New York Attorney General Letitia James announced Monday that she will defend her state’s abortion protections in a lawsuit brought by the state of Texas. This sets up the first interstate fight over abortion laws since the fall of Roe v. Wade, opening the door for the Supreme Court to weigh in on a key legal mechanism that has helped people in states with bans access abortion. In a suit brought by Texas, James will defend her state’s abortion shield laws, which protect health providers offering telehealth abortions to people living under bans.

The Conflict Between State Laws

Texas Attorney General Ken Paxton filed a civil suit against Dr. Margaret Carpenter in December for providing a telehealth abortion to a Texas-based patient. Carpenter lives and practices in New York, where abortion is legal; in Texas, where her patient received the health care, there is an almost total ban on abortion. By setting up a clash between two states’ chief law enforcement offices, James’ intervention increases the likelihood that the New York-Texas dispute becomes a vehicle for the Supreme Court to weigh in on the constitutionality of shield laws and the telehealth abortions they enable.

Understanding Abortion Shield Laws

New York is one of several states where abortion providers are protected by shield laws — statutes that ban cooperation with other states’ attempts to enforce abortion bans. The law prohibits New York law enforcement officials from arresting or extraditing health professionals who provided abortions that are legal in New York; law enforcement also cannot cooperate with investigations or punishments of such procedures. “Texas has no authority in New York, and no power to impose its cruel abortion ban here,” James said in a statement. This month, she will argue in legal filings that the Empire State has the right to pass laws protecting its residents from another state’s abortion bans.

Legal and Constitutional Challenges

In February, a judge in a Texas state court ruled against Carpenter, saying she had to pay a penalty of $113,000. But New York state officials have refused to enforce the ruling, citing the state’s shield laws. In July, Paxton sued the Ulster County, New York, clerk for declining to enter the Texas judgement against Carpenter. In that petition, he argued that New York’s shield law violates the U.S. Constitution’s Full Faith and Credit clause, which requires that states honor other states’ judicial proceedings. Legal analysts have said the legality of shield laws will likely be decided by the Supreme Court.

Impact on Patient Access

Since Roe’s undoing, tens of thousands of people living under abortion bans have relied on telehealth to get care. Health providers living in states with legal abortion consult with them virtually and then have abortion pills mailed to them to take from home. The practice is medically safe and effective and often easier and more affordable for patients than traveling to another state. Current statistics highlight the scale of this practice:

• Telehealth usage: About 1 in 4 abortions are now done through telehealth.
• Shield law protection: Half of those telehealth abortions are for people receiving shield-law-protected care.
• Legal penalties: A Texas court recently ordered a New York doctor to pay $113,000 in penalties.

Diverse Legal Perspectives

The legality of the practice is fraught. Supporters of the practice argue that, because the medical providers are practicing in their home states where abortion is legal they are not violating any laws. Conversely, abortion opponents say that because the abortion ultimately occurs in a state where the procedure is banned, telehealth providers are breaking the law and must be punished accordingly.