Texas, New York locked in legal dispute over abortion pill

AUSTIN (Nexstar) — A legal showdown between Texas and New York is now set after Texas Attorney General Ken Paxton filed a new lawsuit against Ulster County, New York's clerk, Taylor Bruck.

Bruck refused to enforce a $100,000 penalty against Dr. Margaret Carpenter after Texas sued her for mailing abortion medication to a Texas woman. She never responded to the lawsuit, and therefore lost by default.

The dispute centers around conflicting laws in Texas and New York. Texas law said doctors not licensed to practice medicine in Texas can not provide medical care to resident of the state, as well as a Texas code which states that "a person may not knowingly perform, induce, or attempt an abortion."

But New York has a "shield law," prohibiting the state's law enforcement from cooperating with out-of-state investigations into doctors who provide gender-affirming or reproductive healthcare. Bruck said he was not trying to be at the center of a dispute, but just trying to follow his state's laws.

"[The shield law is] fairly plain," Bruck said. "It says no government employee shall comply with an out-of-state proceeding civil or criminal related to health care services rendered that are legal in New York state."

Bruck said he asked the New York attorney general and governor's offices, and officials there said they would support him. He said the decision was going to be legally complicated either way.

"If we accepted the judgment, we would have been breaking the shield law, if we rejected it, as Paxton's office thinks, we've broken the law and I'm not doing my constitutional duty as clerk," Bruck said.

Mary Ruth Ziegler is an expert on abortion laws and a professor at the University of California Davis, and said that New York has taken the position that if a doctor does mail the abortion pills out of state, they are only bound by the laws in New York.

But Texas takes the opposite side, arguing that the doctor and ultimately, Bruck, violated Texas laws and that the doctor did not attempt to defend her position in court.

Ziegler said this will likely set up a showdown at the Supreme Court.

"It wouldn't really surprise anyone if New York courts conclude that they should follow New York law," Ziegler said. "I think sooner or later, this is going to end up in federal court, and then will probably eventually make it to the U.S. Supreme Court."

As for how the lawsuit could turn out, Ziegler pointed to the era of slavery for a similar historical analogy.

"The closest analogy really goes all the way back to slavery, when you began to have northern states passing law saying we're not going to comply with fugitive slave statutes," Ziegler said.

Texas has not banned abortion pills entirely, and the Supreme Court has previously upheld access to those medications when parties have sued the Food and Drug Administration. A ban stalled in the Texas House earlier this year.

Ziegler pointed to strategies other than a ban that anti-abortion advocates have tried to use to stop the flow of the pills.

"They've tried to argue that the Comstock Act, ... the 19th century obscenity law operates as a ban on mailing abortion related pills and paraphernalia. But at least so far, the Trump administration hasn't ... expressed any interest in enforcing the Comstock Act," Ziegler said. "Ultimately, you would need to get some kind of buy-in from the Trump administration to enforce that kind of prohibition."

With the lawsuits and legal complexities, Ulster County, New York— a county in the Hudson Valley with around 180,000 people — is at the center of a major political dispute. Bruck said he never would have imagined the attention he and his office have received.

"This really came out of left field," Bruck said. "There's no words to describe what this has been like. It's been stressful, exciting at times. A lot of media coverage that generally county clerks do not get. I think we have one of the more boring administrative roles in government."