Part 3: A look at the case of Dr. Margaret Carpenter
Questions about the rule of law, telecommunication and retaliatory suits abound with landmark case likely headed to the Supreme Court.
It’s become apparent to anyone familiar with the case of Dr. Margaret Carpenter that the eventual outcome will have enormous implications for abortion rights as well as the rule of law.
This is the third in a series of newsletters examining her case. Carpenter is an abortion provider in New York City indicted in Louisiana after prescribing abortion medication to a teenager who later was hospitalized by complications. Gov. Kathy Hochul held a news conference last week that reiterated she wouldn’t extradite Carpenter to Louisiana. She argues that New York’s shield law protects her from prosecution elsewhere.
Today’s newsletter features the perspective of Paul Schiff Berman, the Walter S. Cox Professor of Law at the George Washington University Law School. Berman wrote an article called Conflicts of Law and the Abortion War Between the States that talks about issues with civil and criminal conflicts between abortion laws governing different states.
“The Supreme Court, in a sense, created this by saying, ‘No, this isn't a federal issue. This is an issue that has to be decided state by state,’” Berman said.
“But as soon as you say it has to be decided state by state, you create the possibility of a whole host of conflict of laws problems.”
What was most interesting about my conversation with Berman was the hypothetical he played out for this case’s outcome. Assuming this goes into the federal judiciary and goes up to the Supreme Court, it may rule that Hochul has to extradite the doctor. But the court has no way of enforcing that order.
“Courts don't have their own armies, and they don't have their own police forces other than their security guards,” Berman said. “And even the security guards are technically not in their control completely. So if people stop listening to what courts say, it's unclear whether anything can be done. But you do lose the whole concept of a rule of law society.”
If she obeyed the order, she would hand over the doctor. If she refuses to abide by the order, then a situation will arise where President Donald Trump will get involved. Any president has one means of enforcing the court’s order–the National Guard.
Historically, it was used in the Brown v. Board of Education case, which desegregated schools. Governors in the South refused to follow the court’s order, however. President Dwight Eisenhower had to send in the National Guard to enforce it. This case has a different complexion as it focuses on removing rights instead of granting them.
“In theory, you could have some federal law enforcement come into New York and detain this person and hand them over to the authorities of the other state,” Berman said.
Another aspect of this case worth discussing is the lack of clarity on what governs telehealth practice and telecommunication. Is a person considered legally present in a location they’re broadcasted to? Is it where they broadcast from? Does the law apply to you if you’re part of a conspiracy of a crime in one state but commit that conspiracy in another state through teleconference? That’s especially important when the act is legal in one state, and a crime is illegal in another. Berman said those questions haven’t been litigated.
One of the other points Berman made in his paper dealt with the aspect of shield laws that stipulated abortion providers could recoup legal fees from plaintiffs in lawsuits filed against them in other states.
“You could imagine there would be no end to it,” Berman said. “Because if New York says you can sue the Texas person back, then Texas could say, ‘well, let's create a new cause of action.’
“If somebody sues you under sues a Texas person under one of these retaliatory suit provisions, you will be allowed a retaliatory suit back again. And you could go on and on and on forever.”
If that’s the case, then the threat of expensive lawsuits would deter abortion telemedicine from being provided to Texas women.
“That's the whole point,” Berman said. “That's the reason that they are pursuing this kind of litigation. They're trying to scare or intimidate abortion providers and funders in abortion-access states from providing their services to people in anti-abortion states.”