When the news broke on Jan. 31 that a New York physician had been to a woman in Louisiana, it stoked fear across the network of doctors and medical clinics who engage in similar work.
鈥淚t鈥檚 scary. It鈥檚 frustrating,鈥 said , co-founder of the Massachusetts Medication Abortion Access Project, a that mails mifepristone and misoprostol pills to patients in states with abortion bans. But, Foster added, 鈥渋t鈥檚 not entirely surprising.鈥
Ever since the Supreme Court overturned Roe v. Wade in 2022, abortion providers like her had been expecting prosecution or another kind of legal challenge from states with abortion bans, she said.
鈥淚t was unclear when those tests would come, and would it be against an individual provider or a practice or organization?鈥 she said. 鈥淲ould it be a criminal indictment, or would it be a civil lawsuit,鈥 or even an attack on licensure? she wondered. 鈥淎ll of that was kind of unknown, and we鈥檙e starting to see some of this play out.鈥
The indictment also sparked worry among abortion providers like , medical director for . The clinic doesn鈥檛 mail pills into states with bans, but it does treat patients who travel from those states to Maine for abortion care.
鈥淚t just hit home that this is real, like this could happen to anybody, at any time now, which is scary,鈥 Der Simonian said.
Der Simonian and Foster both know the indicted doctor, Margaret Carpenter.
鈥淚 feel for her. I very much support her,鈥 Foster said. 鈥淚 feel very sad for her that she has to go through all of this.鈥
On Jan. 31, Carpenter became the first U.S. doctor criminally charged for providing abortion pills across state lines 鈥 a medical practice that grew after the U.S. Supreme Court鈥檚 Dobbs v. Jackson Women鈥檚 Health Organization decision on June 24, 2022, which overturned Roe.
Since Dobbs, have enacted near-total abortion bans, and an additional 10 have outlawed the procedure after a certain point in pregnancy, but before a fetus is viable.
Carpenter was indicted alongside a Louisiana mother who allegedly received the mailed package and gave the pills prescribed by Carpenter to her minor daughter.
The teen wanted to keep the pregnancy and called 911 after taking the pills, according to an NPR and 麻豆女优 Health News interview with , the Louisiana local district attorney prosecuting the case. When police responded, they learned about the medication, which carried the prescribing doctor鈥檚 name, Clayton said.
On Feb. 11, Louisiana鈥檚 Republican governor, , signed an for Carpenter. He later posted arguing she 鈥渕ust face extradition to Louisiana, where she can stand trial and justice will be served.鈥
New York鈥檚 Democratic governor, , countered by releasing her , confirming she was refusing to extradite Carpenter. The charges carry a possible five-year prison sentence.
鈥淟ouisiana has changed their laws, but that has no bearing on the laws here in the state of New York,鈥 Hochul said.
Eight states 鈥 New York, Maine, California, Colorado, Massachusetts, Rhode Island, Vermont, and Washington 鈥 have since 2022 to protect doctors who mail abortion pills out of state, and thereby block or 鈥渟hield鈥 them from extradition in such cases. But this is the first criminal test of these relatively new 鈥渟hield laws.鈥
The telemedicine practice of consulting with remote patients and prescribing them medication abortion via the mail has 鈥 and is now playing a critical role in keeping abortion somewhat accessible in states with strict abortion laws, from the Society of Family Planning, a group that supports abortion access.
Doctors who prescribe abortion pills across state lines describe facing a new reality in which the criminal risk is no longer hypothetical. The doctors say that if they stop, tens of thousands of patients would no longer be able to end early pregnancies , under the care of a U.S. physician. But the doctors could end up in the crosshairs of a legal clash over the interstate practice of medicine when two states disagree on whether people have a right to end a pregnancy.
Doctors on Alert but Remain Defiant
Maine Family Planning, a network of clinics across 19 locations, offers abortions, birth control, gender-affirming care, and other services. One patient recently drove over 17 hours from South Carolina, a state with a six-week abortion ban, Der Simonian said.
For Der Simonian, that case illustrates how desperate some of the practice鈥檚 patients are for abortion access. It鈥檚 why she supported Maine鈥檚 2024 , she said.
Maine Family Planning has discussed whether to start mailing abortion medication to patients in states with bans, but it has decided against it for now, according to Kat Mavengere, a clinic spokesperson.
Reflecting on Carpenter鈥檚 indictment, Der Simonian said it underscored the stakes for herself 鈥 and her clinic 鈥 of providing any abortion care to out-of-state patients. Shield laws were written to protect against the possibility that a state with an abortion ban charges and tries to extradite a doctor who performed a legal, in-person procedure on someone who had traveled there from another state, according to a by the at the UCLA School of Law.
鈥淚t is a fearful time to do this line of work in the United States right now,鈥 Der Simonian said. 鈥淭here will be a next case.鈥 And even though Maine鈥檚 shield law protects abortion providers, she said, 鈥測ou just don鈥檛 know what鈥檚 going to happen.鈥
Data shows that in states with total or six-week abortion bans, an average of 7,700 people a month were prescribed and took mifepristone and misoprostol to end their pregnancies by out-of-state doctors practicing in states with shield laws. The data, covering the second quarter of 2024, is part of a estimating the volume and types of abortions in the U.S., conducted by the Society of Family Planning.
Among Louisiana residents, nearly 60% of abortions took place via telemedicine in the second half of 2023 (the most recent period for which estimates are available), giving Louisiana the highest rate of telemedicine abortions among states that passed strict bans after Dobbs, according to the #WeCount survey.
Organizations like the , known as the MAP, are responding to the demand for remote care. The MAP was launched after the Dobbs ruling, with the mission of writing prescriptions for patients in other states.
During 2024, the MAP says, it was mailing abortion medications . In the new year, the monthly average has grown to 3,000 prescriptions a month, said Foster, the group鈥檚 co-founder.
The majority of the MAP鈥檚 patients 鈥 80% 鈥 live in Texas or states in the Southeast, a region blanketed with near-total abortion restrictions, Foster said.
But the recent indictment from Louisiana will not change the MAP鈥檚 plans, Foster said. The MAP currently has four staff doctors and is hiring one more.
鈥淚 think there will be some providers who will step out of the space, and some new providers will step in. But it has not changed our practice,鈥 Foster said. 鈥淚t has not changed our intention to continue to practice.鈥
The MAP鈥檚 organizational structure was designed to spread potential liability, Foster said.
鈥淭he person who orders the pills is different than the person who prescribes the pills, is different from the person who ships the pills, is different from the person who does the payments,鈥 she explained.
In 22 states and Washington, D.C., Democratic leaders helped establish shield laws or similarly protective executive orders, according to the UCLA School of Law review of shield laws.
The review found that in eight states, the shield law applies to in-person and telemedicine abortions. In the other 14 states plus Washington, D.C., the protections do not explicitly extend to abortion via telemedicine.
Most of the shield laws also apply to civil lawsuits against doctors. Over a month before Louisiana indicted Carpenter, Texas Attorney General Ken Paxton filed a civil suit against her. A Texas judge ruled against Carpenter on Feb. 13, of more than $100,000.
By definition, state shield laws cannot protect doctors when they leave the state. If they move or even travel elsewhere, they lose the first state鈥檚 protection and risk arrest in the destination state, and maybe extradition to a third state.
Physicians doing this type of work accept there are parts of the U.S. where they should no longer go, said , a human rights lawyer who helps doctors set up telemedicine practices.
鈥淭here鈥檚 really a commitment not to visit those banned and restricted states,鈥 said Kay, who worked with Carpenter to help start the .
鈥淲e didn鈥檛 have anybody going to the Super Bowl or Mardi Gras or anything like that,鈥 Kay said of the doctors who practice abortion telemedicine across state lines.
She said she has talked to other interested doctors who decided against doing it 鈥渂ecause they have an elderly parent in Florida, or a college student somewhere, or family in the South.鈥 Any visits, even for a relative鈥檚 illness or death, would be too risky.
鈥淚 don鈥檛 use the word 鈥榟ero鈥 lightly or toss it around, but it鈥檚 a pretty heroic level of providing care,鈥 Kay said.
Governors Clash Over Doctor鈥檚 Fate
Carpenter鈥檚 case remains unresolved. New York鈥檚 rebuff of Louisiana鈥檚 extradition request shows the state鈥檚 shield law is working as designed, according to and , law professors with expertise in abortion laws.
Louisiana officials, for their part, have pushed back in social media posts and media interviews.
鈥淚t is not any different than if she had sent fentanyl here. It鈥檚 really not,鈥 Louisiana Attorney General in New Orleans. 鈥淪he sent drugs that are illegal to send into our state.鈥
Louisiana鈥檚 next step would be challenging New York in federal courts, according to legal experts across the political spectrum.
NPR and 麻豆女优 Health News asked Clayton, the Louisiana prosecutor who charged Carpenter, whether Louisiana has plans to do that. Clayton declined to answer.
Case Highlights Fraught New Legal Frontier
A major problem with the new shield laws is that they challenge the basic fabric of U.S. law, which relies on reciprocity between states, including in criminal cases, said , a senior legal fellow with the Heritage Foundation, which supports a .
鈥淭his actually tries to undermine another state鈥檚 ability to enforce its own laws, and that鈥檚 a very grave challenge to this tradition in our country,鈥 Jipping said. 鈥淚t鈥檚 unclear what legal issues, or potentially constitutional issues, it may raise.鈥
But other legal scholars disagree with Jipping鈥檚 interpretation. The U.S. Constitution requires extradition only for those who commit crimes in one state and then flee to another state, said Cohen, a law professor at Drexel University鈥檚 .
Telemedicine abortion providers aren鈥檛 located in states with abortion bans and have not fled from those states 鈥 therefore they aren鈥檛 required to be extradited back to those states, Cohen said. If Louisiana tries to take its case to federal court, he said, 鈥渢hey鈥檙e going to lose because the Constitution is clear on this.鈥
鈥淭he shield laws certainly do undermine the notion of interstate cooperation, and comity, and respect for the policy choices of each state,鈥 Cohen said, 鈥渂ut that has long been a part of American law and history.鈥
When states make different policy choices, sometimes they鈥檙e willing to give up those policy choices to cooperate with another state, and sometimes they鈥檙e not, he said.
The conflicting legal theories will be put to the test if this case goes to federal court, other legal scholars said.
鈥淚t probably puts New York and Louisiana in real conflict, potentially a conflict that the Supreme Court is going to have to decide,鈥 said Rebouch茅, dean of the Temple University .
Rebouch茅, Cohen, and law professor worked together to draft a proposal for how state shield laws might work. Connecticut passed the first law 鈥 though it did not include protections specifically for telemedicine. It was signed by the state鈥檚 governor in May 2022, over a month before the Supreme Court overturned Roe, in anticipation of potential future clashes between states over abortion rights.
In some shield-law states, there鈥檚 a call to add more protections in response to Carpenter鈥檚 indictment.
New York state officials have. On Feb. 3, Hochul signed that allows physicians to name their clinic as the prescriber 鈥 instead of using their own names 鈥 on abortion medications they mail out of state. The intent is to make it more difficult to indict individual doctors. Der Simonian is pushing for a similar law in Maine.
Samantha Glass, a family medicine physician in New York, has written such prescriptions in a previous job, and plans to find a clinic where she could offer that again. Once a month, she travels to a clinic in Kansas to perform in-person abortions.
Carpenter鈥檚 indictment could cause some doctors to stop sending pills to states with bans, Glass said. But she believes abortion should be as accessible as any other health care.
鈥淪omeone has to do it. So why wouldn鈥檛 it be me?鈥 Glass said. 鈥淚 just think access to this care is such a lifesaving thing for so many people that I just couldn鈥檛 turn my back on it.鈥
This article is from a partnership that includes , , and 麻豆女优 Health News.