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.
It's exactly this sort of thing that is being used to discriminate against trans people as well. Wanting Paxton to gain access to medical records of trans people seeking care outside of TX. They're trying to close all avenues in States that don't agree with this strong-arming of medical care. Also trying to get healthcare providers in trouble for medically treating trans people.
It's a war on women & a war on trans people. It sets a precedence for further abuse by these evangelists. Paxton, mind your own fucking business, boy. What is wrong with you?
All Republicans have, is a war on the vulnerable. If they didn't have this to distract the stupid, which evidently includes 74 million citizens of this country, people would see how much harm the party causes.
There is much to (and that will) be discussed here, but there is still the question that was the first that occurred to me: By what interpretation of law does Texas claim the authority to enforce a penalty for a violation of Texas law that occurred outside Texas?
We already have a single federal judge in Texas who claims the authority to issue injunctions covering the entire nation, are we now to have a Texas regime claiming its laws cover everyone everywhere in the US (no doubt including DC along with Puerto Rico and the other territories)?
There are several federal judges who have issued national injunctions. They're not the problem (or at least, not the main problem). Paxton filed in state court, which just puzzles the hell out of me.
Federal law trumps (have to find a better word) state law in this case, because abortion drugs can be prescribed via telehealth across state lines, but as we all know, this particular federal law is under attack in the Supreme Court. So the doctor in New York will have this removed to federal court...but it won't be in Texas.
Yeah, so he waits to ensure this won't be taken up in federal court until his lord and god Trump is in office, and his pet AG who won't defend the FDA...which will be under attack by RFK Jr, anyway...
At the same time, New York will rigorously protect the doctor and assert _its_ state rights. More importantly, the FDA rule is still in place. And you can't just yank a rule. But the courts have been so tainted by Trump already...
What a bloody mess. And this isn't just about abortion drugs, either.
Gods, right at this moment, I hate and loathe Trump voters or the lazy SOBs who didn't even bother to vote, or nammered about some kind of purity contest.
The "federal judge" bit was a sarcastic reference to Matthew Kacsmaryk of mifepristone infamy.
As for why it was filed in state court, I rather suspect three possibilities: One, they don't really expect to win but want it to go to federal court with the idea of prompting other such suits in other states leading to one somewhere winning and so providing a firmer foundation for working it up the federal level. Two, it's for a Texas audience, that is, it's for publicity. Three, if's for intimidation so that even if it fails, the risk (and costs of defense) may deter others from doing anything similar.
This is an exercise of long arm jurisdiction that state courts do all the time. If you direct products or services at a state, it will assert jurisdiction over you. See Tex Civ P & R Code sec. 17.042(1). If you treat a patient in Texas via telehealth from out of state, you are practicing medicine in Texas and need to be licensed. Tex. Occ. Code sec. 151.056(a). That said, enforcing the injunction against a dr in NY is basically impossible if New York courts won’t cooperate.
Yes, I understand long arm jurisdiction, though Texas long arm statute does have limitations, and all are constrained by due process.
Texas hasn't even demonstrated minimal contact. They have the boxes that supposedly show the doctor's name, but they don't have a shipping package demonstrating that they were shipped. And at that, do they have the boxes legally? They technically are the property of the woman, not the asshole boyfriend. They implied that the drugs were contracted for shipping from New York to Texas, but they don't actually do more than imply in the complaint.
'Carpenter knowingly treats patients in Texas even though she is not a
licensed Texas physician.'
There is no proof of this. In fact, this complaint is profoundly weak. A whole lot of implication but no actual attempt to show how a is linked to b and b linked to c. They just jumped to if a then c and forget that whole b thing. They didn't even attempt to create a strong case.
This is pure unadulterated pig slop.
So, where to go from here? Ignore the case, and depend on the shield law? Remove the case to federal courts because of diversity? The latter would frustrate Paxton's attempts to challenge the shield law. In fact, I suspect Paxton hopes for the former, not the latter.
I understand the state law thing, I do. But this is such an incredibly weak challenge. Equivalent to apes in a zoo aimlessly tossing shit in the hopes of hitting someone.
I just looked at the Texas Long Arm Statute. It covers breach or contract and torts, but not state criminal actions. While I guess you could call buying a drug a contract, the person able to use the long arm is the party to the contract. Boy friends of the buyer aren't. Boy friends might claim a tort injury if there actually a law that biological fathers have an interest in the fetus such that damaging it causes them damage. But what damages? How calculate the damages for "not having a baby to bring up" without proving he was willing to bring up said baby? In any civil suit the burden is on the PLAINTIFF to prove damages.
The state is going to have to amend its long arm statute if it wants to add "crimes" to it.
This is only ONE problem with the case, of course.
The contract that is relevant to long arm jurisdiction is the agreement between the doctor and the patient for medical services. Because the doctor contracted with a Texas patient who performs her part of the contract (principally paying the doctor) in Texas, the doctor has subjected herself to Texas personal jurisdiction.
The petitioner doesn’t prove their case in the petition. These documents are always drafted this way, with a bunch of conclusory recitations and no proof. We’ll see what evidence Paxton’s got if it ever gets to an evidentiary hearing.
Carpenter can enter a plea to the jurisdiction if she wants to challenge the court’s personal jurisdiction, but if she was just dealing out medical advice to persons online without attempting to verify she was licensed to give the advice, I don’t know how well that will go for her.
With regard to diversity, I’m not sure she can remove it without waiving the jurisdictional question?
But yeah, she can ignore it and rely on Texas not being able to domesticate a judgment in NY, so long as she has no assets that can be attached by Texas by other means.
"State courts do it all the time." Yes, they do. But as you note, enforcing such rulings against someone in another state is essentially impossible without the cooperation of the other state's court. Which leaves the original question: Where is the authority (beyond blatant assertion) when the actual enforcement authority lies with the cooperating court?
The injunction is no doubt DOA in NY courts. But an outstanding TX damages judgment can have serious collateral consequences, for example on one’s credit worthiness. And there are lawyers whose whole job is chasing assets across jurisdictions. Does the doctor have a bank account in a national bank that does business in Texas? If so, Paxton can sue the bank, which will be subject to general jurisdiction, to levy her accounts (as an example).
I'm not going to keep going around on this, but as a final comment I will note that the bank account example (of which I had thought) doesn't affect the question because - as you say - that bank is operating inside Texas and therefore is subject to its authority. The doctor is not and Texas saying "Well, as far as we're concerned, they are" just re-raises the original question. In fact, the more I think about it the more confident I am that the real purpose of the suit is intimidation of other out-of-state physicians.
Imagine a NY doctor doing telehealth medicine negligently caused the death of a Texas resident. Texas has no legitimate interest in that because the doctor is out of state?
If a doctor commits malpractice, in person or by telehealth, the cause of action is in the injured party, not the state. The state can revoke the doctor's license, which of course is irrelevant in this case. The real issue for telehealth in general is whether a law that requires someone to have a state license to practice telehealth is enforceable against someone not in the state. If the Extremes say yes then our whole system of jurisdiction and venue is in a mess.
I already said I didn't want to continue this and I have no intention of playing the lawyer game of being expected to reply to a series of hypothetical scenarios.
Particularly here because I already noted that in the event of the bank account scenario you raised the state would have authority to sue the bank to seize the doctor's assets because it operates inside the state and so is subject to its jurisdiction.
But in your example here, does Texas have a "legitimate interest?" Yes: It has the legitimate interest of seeking to convince NY to act against the doctor (and I am prepared to assume that NY, where the negligence occurred, has laws against negligently causing a death).
Thank You, Chris, again, for your insight on the injustice to women, not only in the state of Texas, but to All women in America, and will reStack ASAP 🙏💯👍✨🎄
Ken Paxton, High Priest of Smug and Smirk, does it again! As eager as Nancy Mace for the spotlight, he once again moves Texas an inch ahead of Florida for reactionary litigation.
Republicans will eradicate all transgender Americans by the end of 2026 at the latest. They also intend to eliminate women's legal rights to make their own reproductive choices before Xmas 2025. There's no one and nothing that can stop them. It's already too late. 11/5/24 was the last chance to stop what's coming.
The people who rejected the Democrats in November did so for small reasons. Now everyone will pay in a big way for decisions basing one's vote on non-strategic issues instead of voting for the salvation of our democracy.
Those who didn't vote for Dems to punish them over Gaza? The Trump transition team is already illegally engaging in talks with Netanyahu's government to vastly increase military and financial aid for the complete depopulation of Gaza.
Women will increasingly die as a result of reproductive enslavement as the US infant and maternal mortality rates rise; they're already the highest in the developed world.
It is already too late.
All one could ask for now is that after all Trans people have been eradicated from America, by suicide, murder, incarceration, emigration, or forced detransitioning, please remember us. It would be nice after we're all gone if folks could just drop a white rose from time to time upon our graves.
I read about this in the Substack Abortion Everyday. As I recall, the woman went to the ER because she was concerned about the amount of bleeding she was experiencing. It was in the ER that a doctor told the boyfriend about the woman having taken abortion pills. If this chain of events is accurate, and the woman did not explicitly ask for this information to be given to the boyfriend, then the doctor broke HIPPA confidentiality.
Paxton & his master , Abbott, are reinforcing the prison bars around Texas women. They want to keep the pregnant women of Texas isolated from any escape from their pregnancies. The women of Texas could be all American women very soon if Trump & RFK Jr succeed in banning mifepristone nationally per the Project 2025 plan. Glad NY will fight right back. FYI this is exactly what the Supreme Court wanted when they ended Roe. They wanted to subjugate women back into ‘their’ place.
The reach of this alleged crime as a concept -- like SB8 -- could be broad. It would not just be about abortion. It would allow states to prosecute people for actions done out of state.
Dobbs remains an anathema but the overall concept would apply regardless -for instance, if a doctor provided abortion counseling to a teenager via telemedicine without following the state's parental notification laws.
I posted this as I thought the case itself is extremely important. My question. Which you are better prepared to answer. Is this not analogous the Fugitive Slave Laws in which slave states sought to recapture the enslaved who had fled to free states? Reading the pleadings and your analysis , his was the first thought to come to mind.
It’s an all out #WarOnWomen. 😡
It's exactly this sort of thing that is being used to discriminate against trans people as well. Wanting Paxton to gain access to medical records of trans people seeking care outside of TX. They're trying to close all avenues in States that don't agree with this strong-arming of medical care. Also trying to get healthcare providers in trouble for medically treating trans people.
It's a war on women & a war on trans people. It sets a precedence for further abuse by these evangelists. Paxton, mind your own fucking business, boy. What is wrong with you?
Yes, indeed. The New York shield law explicitly includes protections relating to gender-affirming care as well.
1984 & the Handmaid's Tale
All Republicans have, is a war on the vulnerable. If they didn't have this to distract the stupid, which evidently includes 74 million citizens of this country, people would see how much harm the party causes.
There is much to (and that will) be discussed here, but there is still the question that was the first that occurred to me: By what interpretation of law does Texas claim the authority to enforce a penalty for a violation of Texas law that occurred outside Texas?
We already have a single federal judge in Texas who claims the authority to issue injunctions covering the entire nation, are we now to have a Texas regime claiming its laws cover everyone everywhere in the US (no doubt including DC along with Puerto Rico and the other territories)?
There are several federal judges who have issued national injunctions. They're not the problem (or at least, not the main problem). Paxton filed in state court, which just puzzles the hell out of me.
Federal law trumps (have to find a better word) state law in this case, because abortion drugs can be prescribed via telehealth across state lines, but as we all know, this particular federal law is under attack in the Supreme Court. So the doctor in New York will have this removed to federal court...but it won't be in Texas.
Yeah, so he waits to ensure this won't be taken up in federal court until his lord and god Trump is in office, and his pet AG who won't defend the FDA...which will be under attack by RFK Jr, anyway...
At the same time, New York will rigorously protect the doctor and assert _its_ state rights. More importantly, the FDA rule is still in place. And you can't just yank a rule. But the courts have been so tainted by Trump already...
What a bloody mess. And this isn't just about abortion drugs, either.
Gods, right at this moment, I hate and loathe Trump voters or the lazy SOBs who didn't even bother to vote, or nammered about some kind of purity contest.
The "federal judge" bit was a sarcastic reference to Matthew Kacsmaryk of mifepristone infamy.
As for why it was filed in state court, I rather suspect three possibilities: One, they don't really expect to win but want it to go to federal court with the idea of prompting other such suits in other states leading to one somewhere winning and so providing a firmer foundation for working it up the federal level. Two, it's for a Texas audience, that is, it's for publicity. Three, if's for intimidation so that even if it fails, the risk (and costs of defense) may deter others from doing anything similar.
This is an exercise of long arm jurisdiction that state courts do all the time. If you direct products or services at a state, it will assert jurisdiction over you. See Tex Civ P & R Code sec. 17.042(1). If you treat a patient in Texas via telehealth from out of state, you are practicing medicine in Texas and need to be licensed. Tex. Occ. Code sec. 151.056(a). That said, enforcing the injunction against a dr in NY is basically impossible if New York courts won’t cooperate.
Yes, I understand long arm jurisdiction, though Texas long arm statute does have limitations, and all are constrained by due process.
Texas hasn't even demonstrated minimal contact. They have the boxes that supposedly show the doctor's name, but they don't have a shipping package demonstrating that they were shipped. And at that, do they have the boxes legally? They technically are the property of the woman, not the asshole boyfriend. They implied that the drugs were contracted for shipping from New York to Texas, but they don't actually do more than imply in the complaint.
'Carpenter knowingly treats patients in Texas even though she is not a
licensed Texas physician.'
There is no proof of this. In fact, this complaint is profoundly weak. A whole lot of implication but no actual attempt to show how a is linked to b and b linked to c. They just jumped to if a then c and forget that whole b thing. They didn't even attempt to create a strong case.
This is pure unadulterated pig slop.
So, where to go from here? Ignore the case, and depend on the shield law? Remove the case to federal courts because of diversity? The latter would frustrate Paxton's attempts to challenge the shield law. In fact, I suspect Paxton hopes for the former, not the latter.
I understand the state law thing, I do. But this is such an incredibly weak challenge. Equivalent to apes in a zoo aimlessly tossing shit in the hopes of hitting someone.
And yes, I know I'm not a lawyer and may be missing the obvious.
I just looked at the Texas Long Arm Statute. It covers breach or contract and torts, but not state criminal actions. While I guess you could call buying a drug a contract, the person able to use the long arm is the party to the contract. Boy friends of the buyer aren't. Boy friends might claim a tort injury if there actually a law that biological fathers have an interest in the fetus such that damaging it causes them damage. But what damages? How calculate the damages for "not having a baby to bring up" without proving he was willing to bring up said baby? In any civil suit the burden is on the PLAINTIFF to prove damages.
The state is going to have to amend its long arm statute if it wants to add "crimes" to it.
This is only ONE problem with the case, of course.
The contract that is relevant to long arm jurisdiction is the agreement between the doctor and the patient for medical services. Because the doctor contracted with a Texas patient who performs her part of the contract (principally paying the doctor) in Texas, the doctor has subjected herself to Texas personal jurisdiction.
The problem is that the patient is not complaining.
The petitioner doesn’t prove their case in the petition. These documents are always drafted this way, with a bunch of conclusory recitations and no proof. We’ll see what evidence Paxton’s got if it ever gets to an evidentiary hearing.
Carpenter can enter a plea to the jurisdiction if she wants to challenge the court’s personal jurisdiction, but if she was just dealing out medical advice to persons online without attempting to verify she was licensed to give the advice, I don’t know how well that will go for her.
With regard to diversity, I’m not sure she can remove it without waiving the jurisdictional question?
But yeah, she can ignore it and rely on Texas not being able to domesticate a judgment in NY, so long as she has no assets that can be attached by Texas by other means.
"State courts do it all the time." Yes, they do. But as you note, enforcing such rulings against someone in another state is essentially impossible without the cooperation of the other state's court. Which leaves the original question: Where is the authority (beyond blatant assertion) when the actual enforcement authority lies with the cooperating court?
The injunction is no doubt DOA in NY courts. But an outstanding TX damages judgment can have serious collateral consequences, for example on one’s credit worthiness. And there are lawyers whose whole job is chasing assets across jurisdictions. Does the doctor have a bank account in a national bank that does business in Texas? If so, Paxton can sue the bank, which will be subject to general jurisdiction, to levy her accounts (as an example).
I'm not going to keep going around on this, but as a final comment I will note that the bank account example (of which I had thought) doesn't affect the question because - as you say - that bank is operating inside Texas and therefore is subject to its authority. The doctor is not and Texas saying "Well, as far as we're concerned, they are" just re-raises the original question. In fact, the more I think about it the more confident I am that the real purpose of the suit is intimidation of other out-of-state physicians.
Imagine a NY doctor doing telehealth medicine negligently caused the death of a Texas resident. Texas has no legitimate interest in that because the doctor is out of state?
If a doctor commits malpractice, in person or by telehealth, the cause of action is in the injured party, not the state. The state can revoke the doctor's license, which of course is irrelevant in this case. The real issue for telehealth in general is whether a law that requires someone to have a state license to practice telehealth is enforceable against someone not in the state. If the Extremes say yes then our whole system of jurisdiction and venue is in a mess.
::sigh::
I already said I didn't want to continue this and I have no intention of playing the lawyer game of being expected to reply to a series of hypothetical scenarios.
Particularly here because I already noted that in the event of the bank account scenario you raised the state would have authority to sue the bank to seize the doctor's assets because it operates inside the state and so is subject to its jurisdiction.
But in your example here, does Texas have a "legitimate interest?" Yes: It has the legitimate interest of seeking to convince NY to act against the doctor (and I am prepared to assume that NY, where the negligence occurred, has laws against negligently causing a death).
Expect no further response.
Thank You, Chris, again, for your insight on the injustice to women, not only in the state of Texas, but to All women in America, and will reStack ASAP 🙏💯👍✨🎄
Mind your own damn business!
Ken Paxton, High Priest of Smug and Smirk, does it again! As eager as Nancy Mace for the spotlight, he once again moves Texas an inch ahead of Florida for reactionary litigation.
Paxton is a political hack who got away with securities fraud.
Republicans will eradicate all transgender Americans by the end of 2026 at the latest. They also intend to eliminate women's legal rights to make their own reproductive choices before Xmas 2025. There's no one and nothing that can stop them. It's already too late. 11/5/24 was the last chance to stop what's coming.
The people who rejected the Democrats in November did so for small reasons. Now everyone will pay in a big way for decisions basing one's vote on non-strategic issues instead of voting for the salvation of our democracy.
Those who didn't vote for Dems to punish them over Gaza? The Trump transition team is already illegally engaging in talks with Netanyahu's government to vastly increase military and financial aid for the complete depopulation of Gaza.
Women will increasingly die as a result of reproductive enslavement as the US infant and maternal mortality rates rise; they're already the highest in the developed world.
It is already too late.
All one could ask for now is that after all Trans people have been eradicated from America, by suicide, murder, incarceration, emigration, or forced detransitioning, please remember us. It would be nice after we're all gone if folks could just drop a white rose from time to time upon our graves.
That's all I ask.
Thanks for keeping us informed!
I read about this in the Substack Abortion Everyday. As I recall, the woman went to the ER because she was concerned about the amount of bleeding she was experiencing. It was in the ER that a doctor told the boyfriend about the woman having taken abortion pills. If this chain of events is accurate, and the woman did not explicitly ask for this information to be given to the boyfriend, then the doctor broke HIPPA confidentiality.
This reeks of a politically-motivated lawsuit.
Paxton & his master , Abbott, are reinforcing the prison bars around Texas women. They want to keep the pregnant women of Texas isolated from any escape from their pregnancies. The women of Texas could be all American women very soon if Trump & RFK Jr succeed in banning mifepristone nationally per the Project 2025 plan. Glad NY will fight right back. FYI this is exactly what the Supreme Court wanted when they ended Roe. They wanted to subjugate women back into ‘their’ place.
Some Texan legislators are considering requiring Texans to notify their local police department any time they travel out of state.
The reach of this alleged crime as a concept -- like SB8 -- could be broad. It would not just be about abortion. It would allow states to prosecute people for actions done out of state.
Dobbs remains an anathema but the overall concept would apply regardless -for instance, if a doctor provided abortion counseling to a teenager via telemedicine without following the state's parental notification laws.
As a Texan, Paxton makes me want to hurl. Asshole
Can’t wait to talk about the fun stuff, like jurisdiction.
I posted this as I thought the case itself is extremely important. My question. Which you are better prepared to answer. Is this not analogous the Fugitive Slave Laws in which slave states sought to recapture the enslaved who had fled to free states? Reading the pleadings and your analysis , his was the first thought to come to mind.
By getting these men involved, they make sure we women know they own us.
I hate and loathe Paxton. My hope is actions like his will finally wake our country the hell up.