WASHINGTON — A legal battle is brewing between the states of Texas and New York over abortion rights. Texas Attorney General Ken Paxton wants to penalize a New York doctor for prescribing a medication abortion drug to a Texas woman. Abortion law experts say it is just the latest foray into uncharted legal territory following the fall of Roe vs. Wade.
The day after Donald Trump was elected president, the group Aid Access, which sends abortion pills by mail, saw 10,000 requests for the drug. The group gets about 600 requests a day from across the country, including from Republican-led states like Texas with abortion restrictions.
“Telemedicine has been lowering the barrier to access abortion services dramatically, because before telemedical abortions existed, people had to travel to states,” said Dr. Rebecca Gomperts, a Dutch physician and co-founder of Aid Access.
“Some of the doctors in states like Texas, they don’t feel safe to do it, and fortunately, there are doctors in other states that are still willing to provide life-saving medical care,” Gomperts continued.
Paxton is suing one of the doctors Aid Access has worked with in New York for prescribing a patient in North Texas the abortion drug. According to the complaint, the doctor is not licensed to practice in Texas.
In a statement, Paxton said, in part, “In Texas, we treasure the health and lives of mothers and babies, and this is why out-of-state doctors may not illegally and dangerously prescribe abortion-inducing drugs to Texas residents.”
The challenge sets up a clash between Texas’ law prohibiting the mailing of abortion drugs and New York’s shield law that aims to safeguard doctors who prescribe pills via telemedicine.
“The shield law states have been designed to protect providers against states that are wanting to harm their women, basically that want to prevent them getting access to life-saving medical care. This is why the shield law states have been implemented, and the fact that they were implemented means that they might have been needed,” Gomperts said. “I’m sure that if there is any rule of law in the United States, that these shield laws will be working and will protect health care providers.”
In response to Paxton’s lawsuit, New York Attorney General Letitia James said in a statement, “We will always protect our providers from unjust attempts to punish them for doing their job and we will never cower in the face of intimidation or threats.”
Some legal experts say after the fall of Roe v. Wade, it was almost inevitable that conflicting state laws would be tested.
“I think, unfortunately, what happens now is this becomes a federal issue that could ultimately end up at the Supreme Court. It is hard to parse, even as a lawyer, which states law should dominate in this situation,” said Carliss Chatman, an associate professor of law at Southern Methodist University.
“It’s virtually impossible to say that one state’s law can dominate everyone in a state when we’ve got the advent of telemedicine and all of these technological advances that make our lives better. It’s just, it’s really hard for a single state to regulate. It almost makes all health care a federal issue, to a degree, or at least the prescribing of medication, a federal issue.” Chatman continued.
The Supreme Court earlier said a group of doctors who oppose abortion rights lacked the legal authority to revoke the Food and Drug Administration’s longtime approval of the medication abortion drug mifepristone. But legal experts expect states will continue to try making access to it difficult.
Trump said it is highly unlikely that he would restrict the drug.