Dem
47
GOP
53
And note that, by "New York doctor," we mean "New York doctor who has never set foot in the state of Texas."
You see, Texas Attorney General Ken Paxton has sued a New York physician, Dr. Margaret Carpenter, for allegedly violating Texas law in prescribing medication for an abortion via telehealth to a Texas resident. The complaint seeks injunctive and monetary relief (statutory damages of $100,000 per violation) and alleges that Dr. Carpenter was practicing medicine in Texas without a license and performing an abortion in violation of Texas law. As a reminder, the FDA authorizes telehealth for a medication abortion.
New York's shield law offers meaningful protections for doctors who provide medication for abortions to residents in states with abortion bans. For example, witnesses can't be compelled to testify in these cases, courts are prohibited from issuing subpoenas related to these proceedings, and discovery is severely restricted. It also authorizes a countersuit for damages and attorneys' fees. New York AG Letitia James had some choice words for Paxton in response to the suit: "We will always protect our providers from unjust attempts to punish them for doing their job and we will never cower in the face of intimidation or threats."
The bigger question, though, is more fundamental: Can a Texas court exercise personal jurisdiction over a New York doctor who has never set foot in the state, does not practice medicine in the state and did not solicit any patients there? The answer should be no. On jurisdiction, the complaint states: Dr. Carpenter "contracted by mail or otherwise with a resident in Collin County, Texas with performance in whole or in part in Texas." That is an awfully thin reed on which to assert personal jurisdiction over a New York physician, and, if upheld, has wide-ranging implications for all kinds of services, medical and otherwise. If prescribing a pill subjects out-of-state physicians to Texas' judicial processes (and Texas medical licensing requirements), that would upend much more than just abortion care (online viagra, anyone?). And from there, it's a hop, skip and a jump to many other cans of worms where actions in one state, and laws in another, come into conflict.
There's a little case called International Shoe from 1945 that this site's lawyer-readers were subjected to as 1L's, which is the seminal Supreme Court case on when a non-resident can be subject to a state's judicial processes. The upshot is that one must have affirmatively sought out the benefits and protections of the state's laws to be subject to its jurisdiction. The focus is not on the location of the alleged injury—in this case, where the abortion occurred—but on whether the doctor has any meaningful connections to the forum. As recently as 2011, in J. McIntyre Machinery v. Nicastro, Justices Clarence Thomas, Samuel Alito and John Roberts held that a court does not have personal jurisdiction over a corporation whose product merely ended up in the state without any other efforts by the company to market its wares there. That sounds a lot like the situation here. No doubt the Texas woman found Dr. Carpenter online through the organization Aid Access, and reached out to make an appointment. That the woman happens to live in Texas should not be sufficient under International Shoe and J. McIntyre to subject Dr. Carpenter to Texas' unique brand of justice.
The remaining issue is even more troubling: How did this come to Paxton's attention in the first place? The woman is not involved in this suit; she chose to have an abortion and there is no evidence that the medication she took was anything other than safe and effective. The complaint offers no evidence of any injury to the woman, only that she went to the emergency room. And simply going to the ER to determine whether things are proceeding normally is not a "complication." Instead, it appears the woman's boyfriend suspected she had an abortion and reported her to the authorities. This behavior, and the state's response, only highlights the need for a national policy—abusive relationships thrive under these draconian and dangerous laws.
Paxton surely knows his lawsuit is frivolous, but that isn't the point. The point is to scare both women and doctors and to drive women further underground. This will lead to more deaths, but that doesn't concern Paxton, whose state's maternal mortality committee is refusing to examine any data on deaths from the last 2 years. Paxton loves the publicity and scoring political points off vulnerable women is his bread and butter (as opposed to corporate polluters, who get a pass). But that will keep national attention on the problem of states reaching beyond their borders to impose their rules on states where abortion is protected. This will throw some sand into the gears of Donald Trump's plan to dodge the issue by punting to the states. No doubt this will come up a time or two in the midterms. (L)