Texas AG Ken Paxton’s lawsuit against a New York doctor marks a new front in the fight against telehealth abortion shield laws and cross-state medication abortion access.
Texas Attorney General Ken Paxton filed a civil lawsuit last month on behalf of the state against New York doctor Maggie Carpenter, co-founder of the Abortion Coalition for Telehealth, for prescribing abortion pills through telehealth to a Texas woman. In the complaint, Paxton asks the court to “enjoin Carpenter from continuing to operate outside the bounds of the law and impose civil penalties [of not less than 100,000] for her violation of Texas law” and to award the state “all litigation and investigative costs.”
Paxton’s lawsuit is a direct attack on telehealth abortion shield laws—a move that has been anticipated since Massachusetts enacted the country’s first such law in the immediate aftermath of the Supreme Court’s 2022 decision in Dobbs. Heralded as a “huge breakthrough” by abortion advocates, this innovative move, which offers protection to telehealth providers who send abortion pills into ban states, was slammed by antiabortion groups.
Kyleen Wright, president of Texans for Life, excoriated telehealth providers who intended to take advantage of the state’s novel legal protections to send abortion pills to abortion hostile states as “reckless” and “terribly wrong.” Ominously, she told the Boston Globe, if “your doctors are in Massachusetts, and they’re surprised that we haven’t come after them, you might just tell them to hold onto their hats. … We are working on some more innovative and creative ways of putting a stop to this.”
And while the current lawsuit is against a physician from New York who sent pills to a Texas woman under the protective mantle of her state’s abortion telehealth shield law, the gloves are now fully off. It is not entirely clear why Paxton chose this particular moment in time to bring this lawsuit. However, what is clear is that antiabortion activists have been enraged by the steady uptick in pills flowing into ban states from physicians in the now eight states that have enacted telehealth shield laws: California, Colorado, Maine, Massachusetts, New York, Rhode Island, Vermont and Washington.
According to #WeCount, a quarterly report from the Society of Family Planning, during the second quarter of 2024 (April to June), “there were more than 9,700 abortions provided per month … via telehealth under shield law protections. This represents about half of telehealth abortion care and a 5 [percent] increase since the first quarter of 2024.”
While the eight states listed above specifically mention telehealth in their shield laws, over 20 states where abortion remains legal have enacted some form of shield laws to protect abortion providers and helpers who offer legal abortion care to those traveling from states where abortion is banned or restricted. At their core, these laws prohibit officials and state agencies from cooperating with out-of-state investigations and legal proceedings initiated by hostile home state actors based on the provision of legal abortion services in the shielding state.
Will doctors be more afraid to mail pills into Texas, even if they might be protected by shield laws because they don’t know if they’re protected by shield laws?
Mary Ziegler, law professor at the University of California, Davis, School of Law
These laws—which run counter to the usual practice of interstate cooperation—have drawn the ire of antiabortion groups. According to the antiabortion Charlotte Lozier Institute, “The protection of abortion seems to be such a priority for these states that they are willing to destroy comity and good will with neighboring states trying to investigate violations of their own laws or seeking the enforcement of their courts’ legal processes or judgments.”
The fiercest anger, however, seems to have been aroused by telehealth abortion shield laws, which the Lozier Institute blasts as the “primary tool” of “abortion-friendly states to undermine efforts to protect unborn children and their mothers in pro-life states.”
Paxton’s lawsuit, the first of its kind, targets an “extremist” telehealth abortion shield law. This attack is part and parcel of the knots that antiabortionists have tied themselves into in order to take abortion pills—now used in two-thirds of abortions—off the market.
To this broader end, the Alliance Against Hippocratic Medicine filed a lawsuit against the FDA challenging its original approval of mifepristone (the first of the two pills used in medication abortion) and its liberalization of restrictions, such as lifting the in-person distribution requirement. Project 2025 and attorney Jonathan Mitchell, drafter of Texas’ vigilante justice abortion law, have called for the resurrection of the zombie Victorian-era Comstock law to criminalize the sending and receiving of abortion pills.
When it comes to the telehealth medicine, the usual rule is that the “practice of medicine occurs where the patient is located at the time that telemedicine technologies are used,” and the physician must be licensed in the state where the patient resides, according to the Federation of State Medical Boards. Telehealth shield laws flip that paradigm by defining “legally protected reproductive [healthcare] … as having taken place where the licensed provider is located when they give care from their state,” as the Abortion Coalition for Telehealth explains. By making the shield state the site of abortion care, telehealth providers who send abortion pills into ban states are able to avail themselves of the protections offered to those providing legal abortions to pregnant persons who have traveled to a shield state for care.
According to the antis, telehealth shield laws represent brazen intrusions into the efforts of ban states to “protect the lives and health of its citizens—including the lives and health of unborn children and their families,” as Erin Hawley, an attorney at the Alliance Defending Freedom, puts it. Caught in the crosshairs, many telehealth providers are minimizing risks by not traveling to or even passing through abortion ban states to avoid the risk of being arrested or served with papers.
But telehealth abortion shield laws are essential when it comes to protecting the lives and health of pregnant people living in ban states who are unable to travel to access essential reproductive healthcare in states where it is protected. As Michele Colón, the executive director of SHERo stresses, “These laws are reaching the ones that were impacted the most: low-income, poor people, communities of color, Indigenous.”
Editor’s note: The organization Plan C has a comprehensive guide to finding abortion pills on their website at www.plancpills.org. Select “Find Abortion Pills” and then select the state where you are located from the drop-down menu. The website is continually updated and has all the latest information on where to find abortion pills from anywhere in the U.S.
