Slate legal expert Mary Ziegler weighs in on Louisiana’s attempt to prosecute New York doctor Margaret Carpenter for sending abortion pills to a woman in that state. Dr. Carpenter has also been sued by Ken Paxton for the same thing in Texas.
This particular case will almost certainly turn on whether Louisiana can force Carpenter to enter the state in the first place. It’s not unusual for defendants to fight extradition, as Luigi Mangione initially did before agreeing to be extradited to New York to face charges related to the killing of United Healthcare CEO Brian Thompson. But for the most part, states grant one another’s extradition requests. That’s where the shield law comes in: It provides that New York’s governor can’t comply with extradition requests unless federal law otherwise requires it.
So does federal law require it? The Constitution’s extradition clause does create certain obligations for states, but only for defendants who “flee from Justice.” A fugitive, by this definition, is usually understood to be someone who commits a crime in one state, then leaves to seek sanctuary in another. Had Carpenter operated a mobile abortion clinic and performed procedures in Louisiana before returning to New York, this case would be very different.
But Carpenter never left the state of New York. And that matters under existing federal law. That’s what the Supreme Court concluded in an 1885 case involving a Utah defendant who was alleged to have hoodwinked a Pennsylvania family into paying him for land, a house, and a business that weren’t his to sell. The court held that extradition was obligatory only when a defendant “was within the demanding state at the time he is alleged to have committed the crime charged, and subsequently withdrew.”
That was the same conclusion the court arrived at in 1903, when New York sought to extradite a Tennessee man who wasn’t in New York at the time an alleged financial crime was committed (and when his actions didn’t appear to be a crime under Tennessee law).
Carpenter wasn’t in Louisiana when the abortion alleged in this case took place. So even if Louisiana had jurisdiction over her because she mailed pills into the state, and even if her conduct violated the state’s law, New York may well be able to refuse to extradite her. And if Carpenter doesn’t show up to court, Louisiana can’t constitutionally proceed because defendants have a right to be physically present in the courtroom at the start of a felony case.
It’s not inevitable, though, that things will be this simple for New York or Carpenter. The current Supreme Court majority hasn’t been exactly shy about undoing long-standing precedent, especially when a culture-war issue is central to a case. And even if Carpenter prevails, the arrest warrant will loom over her anytime she leaves the state—not only in Louisiana, but in any other jurisdiction. Though a significant number of states have passed shield laws, they generally don’t create reciprocal obligations toward shield defendants from other states; in other words, New York or California might protect its own residents from extraterritorial lawsuits and prosecutions, but those protections don’t necessarily extend to out-of-state residents, and they certainly don’t help their own residents once they leave the state.
Whatever happens in this case won’t make the outcome of other cross-border cases any clearer. What will happen when individual men sue doctors for sending their partners abortion pills—as anti-abortion leaders have promised we’ll see in the coming months? Or if prosecutors target abortion funds or donors to them, or websites or internet service providers, or any number of others deemed to facilitate abortions?
See here for the background. I had noted the possibly lifelong travel constraints that this puts on Dr. Carpenter, but I hadn’t realized that it might extend to all travel, even to neighboring abortion-friendly states. That’s a hell of a lot to ask of someone who would resist this kind of fascistic regime.
Jessica Valenti provides a bit of good news on this front.
New York Gov. Kathy Hochul signed a bill that will protect providers who ship abortion medication to anti-choice states.
I flagged this legislation a few weeks ago: The law allows providers to keep their name off of abortion medication prescription labels, shielding them from zealous out-of-state prosecutors.
The signing comes just days after Louisiana indicted a New York doctor who shipped abortion medication to a teen in the state. Dr. Maggie Carpenter, who has also been targeted by Texas Attorney General Ken Paxton, was identified by prosecutors because of her name on the prescription label. “After today, that will no longer happen,” Gov. Hochul said at a press conference.
“Going forward when another doctor prescribes another FDA-approved drug like mifepristone to terminate a pregnancy—they’re simply going to have the name of the health care company on the label, rather than the name of the provider.”
Gov. Hochul also made clear that she would never “under any circumstances” turn Carpenter over to Louisiana. “There’s no way in hell,” she said.
In addition to protecting abortion providers from out-of-state prosecutions, the new law will protect doctors from harassment and violence—which has been on the rise since Roe was overturned, and stoked by the Trump administration.
Abortion rights activists are hoping that other pro-choice states will pass similar legislation to protect providers. A few of the folks I spoke to mentioned hopes for California, in particular. (Looking at you, Gov. Newsom!)
Would have been nice to have had that in place beforehand, but at least it’s there now. And someday, we can look forward to not needing any of these laws. But for now, this is where we are.