After the Supreme Court overturned Roe v. Wade, abortions in the United States actually went up, in part because of a novel legal strategy that pitted blue states against red states.Pam Belluck, who covers health and science for The Times, discusses that strategy and explains how proceedings against a New York doctor could take it apart.Guest: Pam Belluck, a health and science reporter at The New York Times.Background reading: The Louisiana case appears to be the first time criminal charges have been filed against an abortion provider for sending pills into a state with a ban.From 2024: Abortion shield laws are a new war between the states.For more information on today’s episode, visit nytimes.com/thedaily. Transcripts of each episode will be made available by the next workday. Photo: Evelyn Hockstein/Reuters Unlock full access to New York Times podcasts and explore everything from politics to pop culture. Subscribe today at nytimes.com/podcasts or on Apple Podcasts and Spotify.
Chapter 1: Why did abortion rates increase after Roe v. Wade was overturned?
From The New York Times, I'm Rachel Abrams, and this is The Daily. After the Supreme Court overturned Roe v. Wade, abortions in the United States actually went up. In part, that's because of a novel legal strategy that ended up pitting blue states against red states. Today, my colleague Pam Bellick explains the strategy and the two cases that could take it apart. It's Tuesday, May 27th.
So, Pam, we haven't talked about abortion on the show for a while. And in the years since Roe v. Wade fell, the country has kind of splintered into states where abortion is banned and states where abortion is not banned. And that's just sort of been the state of play, that everybody has their own state laws that they have to abide by. But in reality...
as you have been paying attention to and covering, there's actually been this showdown brewing that now looks poised to upend that whole order that we've maybe grown a bit accustomed to in the last few years.
Yeah, a lot has been happening during this time beyond the different ballot measures that we've been hearing and different state laws and things like that. One of the major developments has been these new legal protections called SHIELD laws.
And they have become both one of the biggest legal developments in the abortion access space and also a major reason why women in states with abortion bans are still able to get access to abortion.
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Chapter 2: What are SHIELD laws and how do they protect abortion providers?
Okay, so let's talk about SHIELD laws. First of all, what are they?
So almost immediately after Roe was overturned, you have conservative states, red states, putting into place abortion bans that were and are very strict. So they make abortion illegal in almost all cases. There are a few exceptions. And they have penalties for anybody who is providing abortion. Right. helping people travel for an abortion. To states where it's legal.
To states where it's legal, exactly. And this raises some legal questions for providers in blue states. Are they putting themselves at risk if they provide abortion to a patient from a red state with an abortion ban?
When the Supreme Court draft opinion was leaked showing that Roe v. Wade could possibly be overturned, the state legislature here in New York acted immediately.
Welcome back. Another step in making California a sanctuary for abortion. Oregon lawmakers are working on a bill that would further protect the right to abortion in Oregon. Senate Bill 1 ensures a woman's right to choose an abortion in Hawaii, protects health care workers.
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Chapter 3: How do SHIELD laws create a legal showdown between states?
So what starts to develop are these laws which basically say If you provide an abortion to a patient from a state with an abortion ban, we will protect you. Hence, shield law. Exactly.
And how exactly do these shield laws say they would protect the providers?
So a shield law is basically a cooperation blockade. So it says here in our shield law state, we will not cooperate with another state that is trying to sue or prosecute a resident in our state who isn't involved in an abortion. So that's really starkly different from the way states usually do cooperate.
And usually, you know, one state files charges against somebody in another state, and the state where that person is will extradite that person, will share records, will respond to subpoenas. But under SHIELD laws, abortion providers and people involved in providing abortions to people from red states are protected.
And the officials in those shield law states are required not to cooperate, not to extradite.
So even though these providers are doing something that is legal in their state, those states are being extra cautious, right? They're basically saying, hey, don't worry, we are not going to let you get into trouble.
Exactly. So the first SHIELD law that passed protected providers who served patients who traveled from states with abortion bans to the blue state. But of course, providers in blue states who were making abortion available to people who came to them were only serving part of the need for abortion access. A lot of women seeking abortions can't travel for one reason or another. It's expensive.
It's very time consuming. And there's also, you know, explaining to everybody around them in their community, why are you suddenly leaving the state for a few days?
Right. It's not just like money and time and child care, which I guess is maybe a form of money and time, but it's also about privacy. Who needs to be involved in this process? Who do you have to tell? Who needs to know about something that is, for many women, very deeply private?
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Chapter 4: What is the case involving Dr. Margaret Carpenter about?
Yeah, so it's actually two cases from two different states. They just happened to involve the same New York doctor, Dr. Margaret Carpenter. Dr. Carpenter lives in New Paltz, New York, and she has been a longtime reproductive health provider. And under SHIELD laws, she's been prescribing abortion pills to patients in all 50 states.
A New York doctor faces a penalty after allegedly prescribing abortion pills to a Texas resident.
Tonight, Attorney General Ken Paxton is suing a doctor in New York who prescribed... This is one of the first challenges of the so-called shield laws, and it sets up a fight between Texas and New York.
So the first case is actually a civil suit that was brought against Dr. Carpenter, and that suit accuses Dr. Carpenter of prescribing and sending abortion medication to a 20-year-old woman in Texas last summer. And it says that after the woman took the pills, she asked her partner to take her to the emergency room because she was bleeding.
Now, it's worth noting that medication abortion is very safe and that bleeding is part of what happens during a medication abortion process because it is the pregnancy tissue being expelled. And so it's not that uncommon for women to wonder if they're bleeding at an appropriate level and not.
There, apparently, her partner learned that she was nine weeks pregnant, and he suspected that she wasn't just having a miscarriage. So he went back to their home, and he found the medications with Dr. Carpenter's name on the prescription, and he reported this to the attorney general's office.
Wow. In a statement, Paxton said, in Texas, we treasure the health and lives of mothers and babies.
And so in December of last year, the attorney general of Texas sued Dr. Carpenter for basically violating Texas's abortion ban. And so under the SHIELD law, Dr. Carpenter and her lawyers did not respond to the civil suit. They didn't show up in court. They didn't file any sort of response.
And so as a result, a judge in the case has ordered a fine of about $113,000 and also issued a permanent injunction that says Dr. Carpenter is prevented from sending abortion pills to patients in Texas again.
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Chapter 5: What are the implications of the Texas lawsuit against Dr. Carpenter?
Chapter 6: How are abortion pills changing access to abortion?
Those pills, just to be clear, are the drugs mifepristone and misoprostol.
Right. And before the pandemic, the FDA had regulations that required patients to go to a doctor or another abortion provider to pick up the mifepristone, the first drug, in person. And that, of course, was limiting for people. Not everybody can go to a clinic. Not every doctor is a certified prescriber.
But during the pandemic, the FDA started to change those rules and allowed the medications to be prescribed by telemedicine without seeing a doctor.
Mm-hmm.
and mailed to wherever the patient was. So after Roe was overturned, there was a realization that you could send abortion pills in the mail to any state, including states with bans. And that's why several states start to adopt either new shield laws or amended shield laws that explicitly state
say that they will protect an abortion provider who is prescribing and sending abortion pills through the mail to patients in states with bands.
So instead of providers just treating women who come to their states where abortion is legal, what you've described is abortion providers essentially bringing the abortion to these women in their states where abortion is not legal. And I think that sounds pretty risky for the providers, no?
It's definitely riskier for the providers, for sure. I think these types of laws are really unusual and they really haven't been tested. So it's a question whether they will ultimately stand. I think that's why you don't see that many abortion providers doing it.
Mm-hmm.
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Chapter 7: What risks do abortion providers face under current laws?
Chapter 8: What challenges do women face when seeking abortions in restrictive states?
Usually some of them have kind of protected their assets and put them in trust, but still they are absolutely taking a lot of chances. And they know that. They're well aware of that. I mean, they go into this eyes open because they are really very committed to providing this access and they see it as a really important avenue. And it has become that. Shield law providers are now sending...
probably more than 10,000 pills a month to women in states with abortion bans.
I know, Pam, that we've said on the show before that since Dobbs, abortions have actually gone up, which feels kind of surprising. Is this the reason why?
This is part of the reason. And these SHIELD laws have put red states in a situation where they are trying to figure out how to stop these medications from flowing into their states. And for a while, they've been looking for cases that would allow them to try to challenge these shield laws. And eventually, they found it.
We'll be right back. Pam, tell us about the case that you mentioned before the break, the one that anti-abortion activists have been waiting for. Who was involved? What was it about?
Yeah, so it's actually two cases from two different states. They just happened to involve the same New York doctor, Dr. Margaret Carpenter. Dr. Carpenter lives in New Paltz, New York, and she has been a longtime reproductive health provider. And under SHIELD laws, she's been prescribing abortion pills to patients in all 50 states.
A New York doctor faces a penalty after allegedly prescribing abortion pills to a Texas resident.
Tonight, Attorney General Ken Paxton is suing a doctor in New York who prescribed... This is one of the first challenges of the so-called shield laws, and it sets up a fight between Texas and New York.
So the first case is actually a civil suit that was brought against Dr. Carpenter, and that suit accuses Dr. Carpenter of prescribing and sending abortion medication to a 20-year-old woman in Texas last summer. And it says that after the woman took the pills, she asked her partner to take her to the emergency room because she was bleeding.
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