Texas A.G. Paxton sues New York doctor over medication abortion allegations

A Law Dork Q&A on this new front in the anti-abortion movement. The litigation also will serve as a challenge — directly or indirectly — to New York's abortion shield law.

Republican Texas Attorney General Ken Paxton has been preparing for months to go after a New York doctor who he alleges is violating Texas law “by providing abortion-inducing drugs to Texans through telehealth,” it appears from the petition he himself posted on Friday.

The lawsuit — both a propaganda effort and an attempt to push the law further right — seeks to bar Dr. Maggie Carpenter, a New York doctor, from practicing medicine in Texas without a license or, more directly, violating the Texas law that generally says a person cannot “knowingly perform, induce, or attempt an abortion.” Paxton is seeking to impose at least $100,000 in civil penalties and “all litigation and investigative costs” on Carpenter.

By going after a New York doctor, Paxton is also seeking to challenge to power of that state, which has implemented several “shield laws” in light of the U.S. Supreme Court decision overturning Roe v. Wade to protect New Yorkers and those in New York against out-of-state investigations based on providing or obtaining abortion care.

Although the petition Paxton’s office posted on Friday is marked by the Collin County clerk as having been filed on December 12, the signature block of the petition itself is dated November 19, and the investigator’s declaration attesting that the facts in the petition “are true and correct” is dated October 15.

Signature block of the petition

Declaration accompanying the petition

In short, this is the case Paxton — a far-right Republican who has regularly used his authority to try to go after those he opposes politically and ideologically like PFLAG and Media Matters — has been looking to bring.

Below are some of the key questions this litigation — a new front in the fight against abortion rights — raises, and some initial, preliminary answers.

Why this case?

The lawsuit presents a picture of Carpenter as a doctor involved in several advocacy organizations — including the Abortion Coalition for Telemedicine (ACT), Aid Access, and Hey Jane — that strongly support the provision of abortion medication through telemedicine. The petition highlights that one, Aid Access, specifically cites its support for doing so in “all 50 states” on its website.

The lawsuit alleges that a Texas woman who was pregnant earlier this year “proceeded to utilize telemedicine or telehealth services and received, through Carpenter, two abortion-inducing drugs or prescriptions.” It then alleges that she sought follow-up treatment at a hospital due to what it alleges was “hemorrhage or severe bleeding.”

And, more on this below, but I imagine the New York aspect of this is an important part of Paxton’s reasoning for choosing this case.

This is the precise scenario where Paxton would like to bring a lawsuit to ensure that Texas’s laws can be enforced as broadly as possible — and are likely to be vociferously challenged, leading both to more media for Paxton and to a strong chance of repeated appeals by Carpenter if needed to defend her work.

How did Paxton’s office find out about this?

The lawsuit makes claims about what it refers to as “the biological father” not knowing about the pregnancy or abortion and only learning about it when the woman sought to go to the hospital. When follows are almost certainly the two key sentences, once you push your way through the propaganda, to understanding the genesis of this investigation and petition:

The biological father of the unborn child, upon learning this information, concluded that the biological mother of the unborn child had intentionally withheld information from him regarding her pregnancy, and he further suspected that the biological mother had in fact done something to contribute to the miscarriage or abortion of the unborn child. The biological father, upon returning to the residence in Collin County, discovered the two above-referenced medications from Carpenter.

“[W]ithheld,” “suspected,” “discovered.”

Compare that to this report from May about Jonathan Mitchell, the former Texas solicitor general who often works with Paxton’s office still, and his efforts representing “ex-boyfriends“ whose exes got an abortion out of state:

The two petitions Mitchell has filed against women who allegedly traveled out-of-state are similar. Both were filed by ex-boyfriends who say they disagreed with their former partner’s decision to get an abortion. The petitions assert each woman’s mother influenced her to have an abortion.

It’s not clear whether they are related efforts, but they do have a similar focus on an apparently unhappy man in the story. Paxton’s petition, although it mentions the “biological father,” provides no information about how his office became aware of the abortion they cite or about when their investigation began.

So, what about New York?

Well, Carpenter is in New York, and New York Gov. Kathy Hochul, a Democrat, already has issued a statement asserting, “No doctor should be punished for providing necessary care to their patients,“ highlighting the state’s shield law, and adding, “Make no mistake: I will do everything in my power to enforce the laws of New York State.“

What is the New York law?

Although the initial shield law passed in 2022 repeatedly references that it is limited to “abortion services or procedures which were legally performed in this state,” the 2023 follow-up law protected the much more broadly defined “[l]egally protected health activity“:

It literally asserts protection for providers in the state taking action helping others “exercise of rights to reproductive health services as secured by the constitution or laws of this state” — as in, New York — “regardless of the patient's location.“

And, finally, New York passed a law permitting a lawsuit for “[u]nlawful interference with protected rights” — referred to in a UCLA fact sheet as allowing a “clawback lawsuit … to recover damages if litigation or criminal charges were brought against [a person] for exercising or facilitating a right to obtain or provide reproductive health care lawful in New York.” It’s not clear whether that would or if it even could be applied against Texas here, but it is yet another complication — and another area that Paxton could be seeking to test or limit by choosing this case.

What about the timing?

Although we don’t know what the meaning is of those three different dates — the filing, the signature block, and the declaration — I would just note that despite someone in the office apparently believing the petition was ready to be filed in mid-October, the higher-ups didn’t date the petition’s signature block until a month later.

In between that was the presidential election.

Then, Paxton’s office still waited another month — until December 12 — to actually file it. And, they announced it Friday — 38 days before Donald Trump takes office.

I don’t think we should ignore the fact that Paxton waited to announce this aggressive effort that could change the national landscape until after the election and, more importantly, until a little more than a month before he is expecting to the have a federal government much more closely aligned with his aims.

What now?

In a statement regarding the lawsuit, the Abortion Coalition for Telemedicine made clear it will not be fighting this litigation on Paxton’s terms.

“Ken Paxton is prioritizing his anti-abortion agenda over the health and well-being of women by attempting to shut down telemedicine abortion nationwide. By threatening access to safe and effective reproductive health care, he is putting women directly in harm’s way,” per the group’s statement.

“Shield laws are essential in safeguarding and enabling abortion care regardless of a patient’s zip code or ability to pay,” the statement continued, redirecting this as a case about New York’s laws. “They are fundamental to ensuring everyone can access reproductive health care as a human right.”

Law Dork will have much more on this going forward, but those are some of the key questions as this new line in the attack on abortion rights begins.