Kansas was the first state in the nation to put a referendum to voters on abortion access.
Image: File Photo/The Capital-Journal 2022
The Kansas Department of Health and Environment is reporting a 58% uptick in the number of abortions performed in the state in 2023. The annual report containing the number of abortions reported in Kansas was released months after it traditionally has been in years past.
The total number of abortions reported in the state was 19,467 in 2023, a substantial increase from the 2022 total of 12,319 and the 2021 total of 7,849. The number is largely driven by a rise in out-of-state patients, with only 4,356 of the abortions being Kansas residents.
SOURCE: Topeka Capital-Journal, by Jack Harvel, 13 December 2024
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Texas abortion lawsuit against New York doctor kicks off a new legal civil war between US states
Image: Mary Ziegler on MSNBC, 6-9-23
When Donald Trump won a second term in office, experts predicted that it was only a matter of time before a civil war of litigation around abortion broke out between the states. Apparently, Texas Attorney General Ken Paxton wasn’t willing to wait anymore. Last week, Texas filed a lawsuit against Margaret Daley Carpenter, a physician and member of the Abortion Coalition for Telemedicine, for mailing pills to patients in the state.
Paxton is seeking massive penalties against Carpenter for practicing medicine without a license in the state of Texas and violating state abortion laws, but the case got started more simply: a man learned that his partner’s miscarriage was actually an abortion. If this sounds simple, don’t be fooled. The suit will raise messy questions about which state’s law applies and when it is unconstitutional for one state to ignore rulings from another. Paxton may have just opened a legal Pandora’s box, but it’s part of much broader plans we should expect to see unfold in the new year—led by men just like the one who gave Paxton this case.
Messiness aside, there’s a reason Paxton led with this suit. New York’s shield law, which is designed to protect doctors and others who help abortion seekers, authorizes anyone who gets sued for engaging in protected conduct around reproductive rights to bring a so-called clawback lawsuit against the person targeting them. But because the federal Constitution makes states immune from most kinds of lawsuits, it will be harder for Carpenter to go after Texas.
That doesn’t mean that Paxton’s suit is a slam dunk, of course: Even if he secures a judgment in Texas, he might not be able to enforce it, even though the full faith and credit clause usually requires states to honor one another’s judgments. The Supreme Court recognizes an exception for so-called penal judgments that applies to more than just crimes. Indeed, it seems tailor-made for situations like this one, in which Texas is using civil penalties to enforce its idea of “public justice.”
Paxton might like his odds when this case lands, sooner or later, before the high court. But this is the beginning of a much bigger push to end interstate access to abortion that focuses on men like the one at the center of this case. Texas Right to Life and other anti-abortion groups looking for plaintiffs to bring lawsuits in the new year have focused on male partners of abortion seekers, who they hope will bring suits for wrongful death. These suits will target not just medical providers like Carpenter but a wide array of actors—including abortion funds, friends, family, websites, internet service providers, and others who help abortion patients find services or information. And organizations like Texas Right to Life don’t just want to apply Texas law when Texas patients take abortion pills within state boundaries. Abortion opponents also want these men to help them shut down travel out of state for abortion—both by punishing those who facilitate travel to places where abortion is protected and by applying bans to conduct that takes place in those states.
Wrongful-death suits are seductive to abortion opponents for another reason: They can set a precedent for the recognition that certain forms of legal personhood begin when an egg is fertilized. Constitutional fetal personhood is the endgame for anti-abortion activists, who believe that state laws recognizing reproductive rights themselves violate the U.S. Constitution. But the state of the law on personhood isn’t clear. Wrongful-death suits are seductive to abortion opponents for another reason: They can set a precedent for the recognition that certain forms of legal personhood begin when an egg is fertilized. Constitutional fetal personhood is the endgame for anti-abortion activists, who believe that state laws recognizing reproductive rights themselves violate the U.S. Constitution. But the state of the law on personhood isn’t clear.
That’s where a wrongful-death suit could make a difference. Look at what happened in Alabama, where the state Supreme Court allowed families to sue for wrongful death based on the destruction of frozen embryos created by in vitro fertilization. The suit focused on wrongful death, but it inspired a broader personhood fight. In Alabama, advocates are now trying to establish that protections for IVF violate state constitutional rights of embryos. Across the country, anti-abortion leaders have pushed for IVF restrictions. Abortion opponents in Texas might hope that these suits launch a fight for constitutional personhood even beyond Texas.
This kind of lawsuit might have an additional aim: to force courts outside ban states to recognize some sort of personhood too. What happens in this scenario—if a man wanted his partner to continue a pregnancy and a red state claims that a wrongful death occurred, while a blue state believes that no one did anything wrong and, indeed, that the partner was exercising a protected right? It won’t be easy to convince a court that a red state can apply its laws to an abortion that takes place somewhere else. But that may only be part of the point. The U.S. Supreme Court hasn’t seemed interested in taking on the question of fetal personhood. Groups like Texas Right to Life might be on the lookout for a way to force the issue by creating conflicts between the states.
That’s because Texas’ lawsuit is not just about conflict between the states. It’s the first salvo in a conflict between men and women over who controls what happens in pregnancy—and the next step in a broader fight for fetal personhood.
SOURCE: Slate, by Mary Ziegler. 16 December 2024.