What’s Going On With the Legal Battle Over Medication Abortion by Mail in Texas and New York?

Telehealth-prescribed medication abortions—or, in other words, abortion pills that are prescribed via telehealth appointments and then mailed to patients in need—currently account for roughly one in four of all abortions in the United States. Still, the conservative fight to stymie their accessibility rages on throughout the country, as evidenced by this week’s skirmish between the attorneys general of New York and Texas. Below, find everything you need to know about the imperiled future of medication abortion by mail in New York, Texas, and around the US:

Why are Texas and New York at odds with each other over medication abortion by mail?

Last month, Texas Attorney General Ken Paxton sued a New York county clerk for refusing to file a six-figure judgment against a doctor accused of prescribing abortion drugs to a Texas woman. On Monday, New York Attorney General Letitia James announced her plans to intervene in that legal fight, saying in a statement: “I am stepping in to defend the integrity of our laws and our courts against this blatant overreach. Texas has no authority in New York, and no power to impose its cruel abortion ban here…Our shield law exists to protect New Yorkers from out-of-state extremists, and New York will always stand strong as a safe haven for health care and freedom of choice.”

What is an abortion shield law, exactly?

Abortion shield laws, which protect abortion providers, patients, and helpers from civil and criminal liability, professional discipline, and other negative consequences, were adopted by many states with a historical record of supporting reproductive rights after the Supreme Court voted to overturn the landmark abortion-rights decision Roe v. Wade in June of 2022. Twenty-two states and Washington, D.C. currently have shield law protections related to reproductive health care, with eight states—including California, Colorado, Maine, Massachusetts, and New York—explicitly protecting provision of care regardless of patient location—which includes access to abortion pills prescribed via telehealth visit and mailed to the patient in need.

What’s likely to happen next in this New York vs. Texas showdown?

James’s declaration that she will defend New York’s state abortion protections and its status as an abortion shield state sets the stage for the first interstate fight over abortion rights since the fall of Roe, making it more likely that the Supreme Court will soon “weigh in on the constitutionality of shield laws and the telehealth abortions they enable,” as The 19th News explains.

What other kind of anti-abortion measures have been taken in Texas in recent years?

While Texas banned abortion after the six-week mark in October of 2021 (almost a year before the Supreme Court voted to overturn Roe v. Wade), the state’s largely conservative legislature hasn’t stopped there in its efforts to disempower people seeking abortions. In the months after Roe fell, Texas also put an abortion-criminalizing trigger ban into effect and created limited affirmative defenses to civil claims brought against physicians for treating ectopic pregnancies or providing miscarriage management. Additionally, the Texas legislature recently advanced H.B. 7, a bill reminiscent of the state’s 2021 “abortion bounty” bill, which would allow private citizens to sue anyone who manufactures, distributes, mails, or provides abortion medication to or from Texas—with successful plaintiffs awarded at least $100,000 in damages.

Is New York the state currently going the furthest to protect patients’ right to receive medication abortion by mail?

Actually, no. This month, California legislators are expected to approve a bill that would allow abortion pills to be sent without the name of the patient, prescriber, or pharmacist in the package. In July, Natalie Birnbaum, the state and legal policy director of Reproductive Health Initiatives for Telehealth Equity & Solutions (RHITES), explained to NPR that the move allowed a patient “to say, OK, I don’t have to be as worried that if I throw it in the garbage, that an abusive partner or somebody with a very different value system than I do will find this label and then in some way, try and penalize me for my choices.”