What The Hell America!

When the news broke on Jan. 31 that a New York physician had been indicted for shipping abortion medications to a woman in Louisiana, Dr. Kohar Der Simonian was hit by a wave of emotions, among them fear and concern.

Der Simonian works as medical director for Maine Family Planning, which is 1,500 miles from Louisiana. Like the indicted doctor, Margaret Carpenter, Der Simonian mails abortion medication to patients in states where the procedure is banned — and her own name is written on the prescriptions.

Der Simonian and other staff at Maine Family Planning know Carpenter through work relationships. They all understood that the battle over abortion had escalated. At a morning staff huddle at a clinic in Augusta about a week after the indictment, it was the first thing they talked about. The mood was heavy.

“It just hit home that this is real, like this could happen to anybody, at any time now, which is scary,” said Der Simonian. But she took a moment to remind the staff that they had been expecting a case like this.

“We didn’t know how, or to who, or what charges, right? But we knew that this was going to happen,” she said.

On Jan. 31, Carpenter became the first U.S. doctor criminally charged for providing abortion pills across state lines — a medical practice that expanded after the U.S. Supreme Court’s Dobbs decision on June 24, 2022, which overturned Roe v. Wade.

Since then, 12 states have near-complete bans and others have enacted bans after a certain point in pregnancy.

Carpenter was indicted alongside a Louisiana mother who allegedly gave the pills that Carpenter sent to her daughter, a minor.

The minor wanted to keep the pregnancy and called 911 after taking the pills, which is how the police learned of the medication and its source, according to an NPR interview with Tony Clayton, the local district attorney prosecuting the case.

On Feb. 11, Louisiana’s Republican governor, Jeff Landry signed a warrant for Carpenter. He later posted a video arguing she “must face extradition to Louisiana, where she can stand trial and justice will be served.”

New York’s Democratic governor, Kathy Hochul, countered by releasing her own video, saying she was refusing to extradite Carpenter. The charges carry a possible 5-year prison sentence.

“Louisiana has changed their laws, but that has no bearing on the laws here in the state of New York,” Hochul said.

Eight states — New York, Maine, California, Colorado, Massachusetts, Rhode Island, Vermont, and Washington — have passed laws to protect telemedicine abortion providers and block extradition in such cases. But this is the first criminal test of these shield laws.

Medication abortion via telemedicine has been growing in recent years — and is now playing a critical role in keeping abortion accessible in states with bans, according to research. Doctors who prescribe pills across state lines say they face a new reality where the criminal risk is no longer hypothetical.

If they stop, tens of thousands of patients in states with abortion bans would no longer be able to end pregnancies at home under the care of a U.S. physician. But these out-of-state doctors could end up in the crosshairs of a potential legal clash over the interstate practice of medicine, especially when state laws disagree on reproductive rights.

Doctors are on alert, but remain defiant

Der Simonian oversees a network of clinics across Maine that offer abortions, birth control and gender-affirming care. The clinics help out-of-state patients in two ways: by mailing them mifepristone and misoprostol, and by treating patients who travel to Maine for care.

One patient recently drove over 17 hours from South Carolina, a state with a six-week abortion ban. For Der Simonian, it illustrates how desperate some of her patients are for abortion access.

The indictment against Dr. Carpenter underscored the stakes for herself — and her clinic — of continuing to do this work, Der Simonian said.

“Most people that are abortion providers also have families and other jobs. It gets complicated, putting yourself at risk,” she said.

Der Simonian has decided she is still willing to continue doing it “because it’s what’s right.”

Data from the #WeCount survey conducted by the Society of Family Planning shows that in states with either total abortion bans or bans after six weeks of pregnancy, an average of 7,700 people a month ordered pills to end their pregnancies from out-of-state doctors practicing under shield laws from April to June of 2024.

Louisiana has seen a massive expansion of telemedicine abortions since Dobbs was overturned. Nearly 60% of abortions among Louisiana residents were via telemedicine, the highest rate of telemedicine abortions among states with strict bans, according to #WeCount.

Organizations like the Massachusetts Medication Abortion Access Project (MAP) are responding to the demand for care. MAP was launched after the Dobbs ruling, with the specific mission of writing prescriptions for patients in other states.

Last year, MAP was mailing abortion medications to nearly 500 patients a month. Since January, they’re averaging 3,000 prescriptions a month, according to the clinic’s co-founder Angel Foster.

Nearly all of the clinic’s patients — 95% — live in states with bans on abortion or on telemedicine abortions, Foster said, and 80% live in Texas or southeastern states, a region blanketed with near-total abortion restrictions.

Doctors who provide abortions often know each other, and have formed a tightly-knit support network. For example, MAP’s Foster knew Carpenter, the doctor indicted by Louisiana.

“I very much support her,” Foster said, “I feel very sad for her that she has to go through all of this.”

MAP has four doctors on staff and is hiring a fifth.

“I think there will be some providers who will step out of the space, and some new providers will step in. But it has not changed our practice. It has not changed our intention to continue to practice,” Foster said.

MAP uses an organizational structure designed to spread potential liability, Foster said.

“The person who orders the pills is different than the person who prescribes the pills, is different from the person who ships the pills, is different from the person who does the payments,” she explained.

The eight states that shield doctors who provide abortion care via telemedicine also have laws that safeguard doctors who provide in-person abortion care, according to a review of shield laws by the Center on Reproductive Health, Law, and Policy at the UCLA School of Law.

Another 14 states, most of which are controlled by Democrats, have either shield laws or executive orders that protect doctors who perform in-person care in that state — but not when they provide abortion care via telemedicine, the review found.

Most of these shield laws address extradition or investigations of physicians in both civil and criminal cases. Carpenter was already facing a Texas lawsuit, filed in December, when Louisiana announced its criminal indictment.

In February, on the same day New York’s governor rejected Louisiana’s extradition request, a Texas judge ordered Carpenter to pay more than $100,000 in penalties for prescribing abortion pills to a woman near Dallas.

The shield laws are meant to protect doctors like Carpenter— as long as they stay in their home state. But if they travel elsewhere, they lose that law’s protection.

These physicians accept there are parts of the country they can no longer visit, said Julie F. Kay, a human rights lawyer who helps doctors set up telemedicine practices.

Kay has worked with Carpenter; together they co-founded the Abortion Coalition for Telemedicine, along with one other physician.

“There’s really a commitment not to visit those banned and restricted states,” said Kay. “We didn’t have anybody going to the Super Bowl or Mardi Gras or anything like that. I’ve talked to doctors where it’s not a good fit because they have an elderly parent in Florida, or a college student somewhere, or family in the South.”

Governors clash over doctor’s fate

Carpenter’s case remains unresolved. Legal experts interviewed by NPR say New York’s refusal to extradite shows the state’s shield law is working exactly as designed. But Louisiana officials have forcefully hit back in social media posts and media interviews.

“It is not any different than if she had sent fentanyl here. It’s really not,” Louisiana’s Attorney General Liz Murrill told Fox 8 News in New Orleans. “She sent drugs that are illegal to send into our state.”

Tony Clayton is the Louisiana DA who brought the charges.

“I firmly believe that a denial of an extradition request from another governor is just a ministerial act, that we plan on challenging Governor Hochul,” Clayton said. “When the proper requests are made, she refuses to turn over [Carpenter], we will deal with that accordingly.”

Louisiana could challenge New York’s law in federal courts, according to legal experts across the political spectrum, but has not yet taken that step. Clayton declined to say if Louisiana would do that.

Case highlights fraught new legal frontier

The new shield laws challenge the basic fabric of U.S. law, which relies on reciprocity between states, including in criminal cases, said Thomas Jipping, a senior legal fellow with The Heritage Foundation, which supports a national abortion ban.

“This actually tries to undermine another state’s ability to enforce its own laws, and that’s a very grave challenge to this tradition in our country,” Jipping said. “It’s unclear what legal issues, or potentially constitutional issues, it may raise.”

But other legal scholars disagree. The Constitution only requires extradition for those who commit crimes in one state and then flee to another, said David Cohen, a law professor at Drexel University’s Klein School of Law.

Telemedicine abortion providers aren’t located in states with bans, and have not fled them — therefore they aren’t required to be extradited, Cohen explained. If Louisiana tries to take their case to federal court, “they’re going to lose because the Constitution is clear on this.”

“The shield laws certainly do undermine the notion of interstate cooperation and comity and respect for the policy choices of each state, but that has long been a part of American law and history,” Cohen said.

“Different states make different policy choices, and sometimes they’re willing to give up those policy choices to cooperate with another state, and sometimes they’re not,” he added.

The conflicting legal theories would be put to the test if and when this case comes to federal court, other legal scholars have said.

“It probably puts New York and Louisiana in real conflict, potentially a conflict that the Supreme Court is going to have to decide,” said Rachel Rebouché, the dean of the Temple University Beasley School of Law.

Rebouché worked with Cohen and another law professor, Greer Donley, to draft the first proposal for a shield law, and they helped pass the first such law in Connecticut, though it does not include telemedicine protections.

It was signed by the state’s governor in May 2022, before the Supreme Court overturned Roe v. Wade, in anticipation of potential clashes between states over abortion rights.

“What if states want to punish providers in other states who are providing abortions that are legal where they are, but not legal in the banned state? And that’s really where the idea of a shield law came about,” Rebouché said.

Health care provided through telemedicine is typically considered to be located where the patient receives that care.

But telemedicine shield laws explicitly seek to protect physicians regardless of the patient’s location by creating a category of “legally protected reproductive health activity.” Rebouche said by protecting a physician engaging in telemedicine, the laws have the effect of shifting the location of care to the physician’s state.

Some states may add more legal protections for abortion providers

Carpenter was charged because her name was found on the mailed prescription, Clayton told NPR.

After the indictment, New York passed a new law that allows physicians to put their clinic’s name — and not their own — on abortion prescriptions they mail out of state. The intent is to make it more difficult to indict individual doctors.

Der Siomonian is pushing for a similar law Maine.

Dr. Samantha Glass is a family medicine physician in New York who has experience writing prescriptions for telemedicine abortions. She also travels to a clinic in Kansas about once a month to perform abortions.

Carpenter’s indictment could cause some doctors to stop sending pills to states with bans, she said. But Glass believes abortion should be as accessible as any other health care, she said, and plans on joining a New York practice that sends pills across state lines.

“Someone has to do it. So why wouldn’t it be me?” Glass said. “I just think access to this care is such a life saving thing for so many people, that I just couldn’t turn my back on it.”

This story comes from NPR’s health reporting partnership with WWNO and KFF Health News.