| Overview |
|
Texas Attorney General Ken Paxton (the “AG”) recently filed a first-of-its-kind civil suit in Texas state court against a New York physician, Dr. Margaret Carpenter, for allegedly “providing abortion-inducing drugs to Texans through telehealth.”
The case raises several important legal questions, including: (1) whether the Texas AG can force Dr. Carpenter to litigate in a Texas court without any factual allegations of specific contacts between Dr. Carpenter and Texas; (2) whether Texas can ban the prescription of mifepristone, an FDA-approved medication; and (3) the extent to which New York's abortion Shield Law protects New York physicians who treat patients via telemedicine in states that have abortion bans.
|
The Allegations and Requested Relief
The Texas lawsuit alleges that between May and July 2024, a Texas woman “utilize[d] telemedicine or telehealth services and received, through [Dr.] Carpenter, two abortion-inducing drugs or prescriptions,” misoprostol and mifepristone, which she used to terminate a pregnancy. The suit further alleges that the biological father “discovered” the medication in the woman’s home. The suit does not allege any facts about the telehealth visit, including when it occurred, where the patient or doctor was located during the visit or which doctor provided it. The suit also does not allege any facts about the patient’s prescription for mifepristone or how she received the medication—other than “through” Dr. Carpenter. The suit does allege that Dr. Carpenter is not licensed to practice medicine in Texas.
Based on these allegations, the AG claims that Dr. Carpenter (1) practiced medicine in Texas without a license and (2) illegally provided abortion-inducing medication, both in violation of Texas law.
The petition asks the Texas court to impose against Dr. Carpenter:
- A temporary and permanent injunction that would enjoin Dr. Carpenter from violating Texas laws that (1) require a Texas license to practice medicine in the state and (2) ban abortions;
- Civil penalties of $100,000 per violation of the state’s abortion ban; and
- Order Dr. Carpenter to pay the AG’s attorney’s fees and other costs in bringing suit.
Issues to Watch
As this case progresses, there are several key issues to watch.
Personal Jurisdiction
Dr. Carpenter may ask the Texas court to dismiss the petition because the court does not have personal jurisdiction over her. Both Texas law and the due process clause of the Fourteenth Amendment—under long-standing Supreme Court precedent—require the AG to show that Dr. Carpenter has certain “minimum contacts” with the state, as evidenced by her ongoing activities within, or directed at, the State of Texas, in order to force Dr. Carpenter to defend herself in a Texas court. Attorneys general routinely encounter motions to dismiss on personal jurisdiction grounds, so one would expect the AG to have included sufficient allegations of “minimum contacts” in the petition against Dr. Carpenter. However, the AG’s petition does not allege any specific contacts between Dr. Carpenter and Texas, except that the pregnant woman obtained medication “through” Dr. Carpenter. While the petition also alleges generally that the woman used telemedicine, there are no allegations that it was Dr. Carpenter who provided telehealth services to the patient, that the patient was located in Texas at the time, nor that Dr. Carpenter sent medication to the patient in Texas.
FDA Preemption
Dr. Carpenter may argue that Texas’s ban on medication abortion, including the prescribing of mifepristone, is “preempted” because the Texas law directly conflicts with federal law. As reported in a previous Manatt Health Highlight, U.S. Attorney General Merrick Garland has declared that state bans on mifepristone—like the one in Texas—“based on disagreement with the FDA’s expert judgment about its safety and efficacy” are not permitted. Despite AG Garland’s view, the Supreme Court has never ruled on a state’s attempt to ban an FDA-approved medication, so it remains to be seen how the Texas court would address an FDA preemption argument in this case.
Application of New York’s Shield Law
New York is one of several states that have enacted “Shield Laws” that seek to protect providers who perform abortions, including via telehealth, when they are providing services from within a state where abortion is legal. Because this case involves the interstate application of an abortion ban against a provider in a state with a Shield Law, some commentors have speculated that this case will challenge the New York Shield Law.
The New York Shield Law, however, is unlikely to be immediately implicated in the Texas AG case because the New York Shield Law does not change the Texas abortion ban or the state’s unlicensed practice of medicine laws. Nor does the New York Shield Law purport to reject or otherwise limit Texas’s authority to enforce its own laws within the state of Texas. Rather, the New York Shield Law seeks to:
- Prevent New York courts from issuing subpoenas or summonses for information or testimony to support the AG’s suit;
- Protect Dr. Carpenter’s license to practice medicine in New York, even if the Texas courts or Texas Medical Board restrict her activities in Texas; and
- Prevent New York officials from assisting the Texas AG in collecting any penalties arising out of the Texas proceeding.
If the Texas AG seeks the assistance of the New York courts in this case, the New York Shield Law would be directly implicated, giving rise to a potential challenge to its validity.
What is at Stake?
Since the Supreme Court decision in Dobbs v. Jackson Women’s Health Organization overturned the federal constitutional right to abortion, some providers in access states have been working to preserve access to abortion services for residents of states where reproductive health services have been banned or restricted. A ruling in this case against Dr. Carpenter could have a significant chilling effect on those providers. A ruling in favor of the Texas AG could also embolden law enforcement in ban states to pursue civil, or even criminal, litigation against providers with attenuated contact to their states.
The impact could also extend beyond abortion to telehealth services more broadly. Since the COVID-19 pandemic, use of telehealth has expanded rapidly. However, the threat of litigation may discourage providers from offering telehealth services to patients who are in other states. This could have a devastating impact on the underserved communities that benefit most from the increased access to care that telehealth generates.