In the years after the Supreme Court’s Dobbs decision returned abortion law to the states, Texas has aggressively sought to end abortion in all but a few cases, even allowing private citizens to sue abortion providers.
These efforts, however, have been hampered by the accessibility of abortion pills, which account for nearly two-thirds of abortions nationwide and are being shipped into Texas by people in blue states like New York and Massachusetts.
This tension will ramp up in December, when legislation signed by Texas Gov. Greg Abbott earlier this month goes into effect. The law allows private citizens to sue anyone who makes or distributes the drugs commonly used to induce abortion — mifepristone and misoprostol — within the state, including by mail.
Abortion-rights supporters say they will continue to send the medication to women in Texas in defiance of the state law. But in doing so, they expose themselves to lawsuits by people who would receive a minimum of $100,000 if their suit is successful. Abortion-rights supporters call it a “bounty hunter” law.
“We’ve kind of gotten into an abortion civil war, and that’s why people who said we should leave (abortion law) to the states were kind of naive. The states don’t want to leave one another alone,” said Mary Ziegler, a law professor at the University of California, Davis, and a scholar of reproductive health and abortion.
The conflict gives new meaning to the term “battleground states” as abortion-rights supporters and abortion opponents wrestle over issues like whether a pregnant woman’s name is on the pill bottle and whether a father has recourse if his child is aborted.
At the heart of the battle, though, is a longstanding issue: Must U.S. states respect the laws of other states? And when the values of two states collide, which one prevails?
What is Texas HB7?
Texas House Bill 7, or HB7, allows private citizens to sue individuals, groups or businesses that manufacture or distribute abortion medication. The law will go into effect Dec. 4.
Women who take the pills are protected from legal action, as are doctors and hospitals who perform abortions to save a woman’s life. The law also exempts postal workers, delivery workers and transportation companies.
Groups that have been helping women have abortions in states where strict laws were implemented after Dobbs are undaunted. The Massachusetts Medication Abortion Access Project, which says it has shipped abortion medication to 10,000 Texas women in the past two years, vows to continue.
“We have great legal counsel who have advised us that what we are doing is legal,” Dr. Angel Foster, the project’s cofounder, told the Associated Press.
But this is a new and untested area of law, and some providers are already facing legal action, including a New York physician who was charged with a felony in Louisiana after sending abortion medication to a pregnant teen and fined $100,000 for providing the drugs to a Texas woman. These cases are in the early stages of litigation, and some legal analysts say they could eventually wind up at the U.S. Supreme Court.
“We’re in uncharted constitutional land here,” said Leslie Francis, the Alfred C. Emery distinguished professor of law and distinguished professor of philosophy at the University of Utah and co-author of the 2024 book “States of Health: The Ethics and Consequences of Policy Variation in a Federal System.”
The legal battles over abortion pills is an evolution of another post-Dobbs fight: whether red states could prosecute blue-state doctors who provide surgical abortions when women travel out of their home state.
The mailing of abortion pills, which first became legal when FDA protocols were relaxed during the COVID-19 pandemic, is an even harder question, Ziegler said.
“If you’re in Texas, Texas gun laws apply. If you’re in Utah, Utah gun laws apply. You don’t magically bring California gun laws with you (when you travel). But I think mailing pills into the state gets more complicated because the doctor may be in California or Massachusetts, but the abortion is happening in the red states,” Ziegler said.
Francis, at the University of Utah, said that both state and federal courts “have been wary of extraterritoriality — that is, the idea that one state may impose its views on what happens in other states."
But, she added, “this is not easy to square with the U.S. basic commitment to an integrated economy and interstate commerce— as the problem of medication abortion so clearly reveals."
How shield laws work
Nearly half of U.S. states have some sort of “shield law” that protects patients and healthcare providers from civil or criminal consequences.
According to the nonprofit health research group KFF, the shield laws in eight states also protect healthcare providers who treat people outside the state: California, Colorado, Maine, Massachusetts, New York, Rhode Island, Vermont and Washington.
These laws are why people in Massachusetts feel comfortable shipping pills to Texas despite the threat of being sued.
“They know there’s risk, but they think it’s manageable, and they’re willing to gamble based on the shield laws,” Ziegler said.
But in the view of Thomas Jipping, a senior legal fellow at the Heritage Foundation’s Center for Legal and Judicial Studies, these laws violate the Full Faith and Credit clause of Article IV of the U.S. Constitution, which requires states to respect each other’s laws.
“This is contrary to a long and very well established tradition where states regularly cooperate with each other in enforcing each other’s laws, even if they don’t necessarily agree on what a particular law says,” Jipping said, adding, “That kind of cooperation is what keeps the union together.”
“It’s not simply ‘We’ll help you enforce a law if we like it.’ It’s never been that way — (but) it’s becoming that way," he said. Jipping, who worked for the late Utah Sen. Orrin Hatch before joining The Heritage Foundation, believes this is happening to the detriment of the nation.
“We’ve crossed a Rubicon. ... And once you set that precedent, it’s not going to be limited to the abortion context. You’ve crossed a line where states can now, just on the basis of their politics, decide whether they’re going to help or hurt other states. That, by definition, begins to tear a union apart,” he said.
In a report issued in December, Jipping outlined the history of medication abortions in the U.S. They were first approved by the FDA 25 years ago this month, but only for the first seven weeks of pregnancy and under physician supervision.
For the next 20 years, the medication had to be dispensed in a doctor’s office, although by 2016, it could be used up to 10 weeks in pregnancy.
In May of 2020, the FDA dropped the in-office requirement because of the pandemic and it was never restored.
The widespread availability of abortion drugs is believed to be the reason the number of abortions in the U.S. has risen, despite the more restrictive laws implemented after the Dobbs decision.
Twenty-five percent of abortions are through medications provided through telemedicine, according to KFF.
Are abortion pills safe?
The battle between red and blue states is accelerating as the Trump administration begins an investigation into the safety protocols of medical abortions.
There is concern among abortion-rights supporters that FDA could restore the earlier requirement that the drugs only be dispensed in person, effectively bringing an end to medication abortions via telemedicine.
A previous case brought before the U.S. Supreme Court challenged the FDA’s prescribing guidelines for mifepristone, but the court ruled unanimously that the doctors who brought the case did not have legal standing.
The nonprofit Ethics & Public Policy Center released a report earlier this year that challenged commonly cited statistics on the medication’s safety and asking for stronger oversight from the Food and Drug Administration.
The authors said their analysis on insurance data found that nearly 11% of women report sepsis, infection, hemorrhaging or another serious adverse event after a medication abortion, compared to the drug label’s claim of fewer than 0.5%. The authors called for further investigation of harm and reconsideration of the drug being approved for use at all.
KFF, the health research firm, called it a “flawed report” and The Nation called it part of a “misinformation campaign.” A fact checker for The Washington Post examined the numbers and confirmed some discrepancies between the label and the insurance data but dismissed other findings as inconsequential.
Although Trump enjoyed the support of abortion opponents — he once called himself “the most pro-life president” in history and his judicial appointments led to the Dobbs decision — he has not shown much willingness to engage on this issue in his second term. It could be, Ziegler said, that the recently announced study of the abortion drugs’ safety could go until the end of his term, effectively punting the issue to his successor.
“Having it both ways has served him pretty well politically and there’s no reason for him to change that unless he has some outside force that requires him to. It’s still too early to know if this isn’t just a three-year study, but I do think the odds are pretty high that something in the next three years will force him to take more of a stand,” she said.
As for how all this is affecting the women seeking abortions, Ziegler said that while ending a pregnancy with drugs obtained from a doctor in another state is “not an ordinary model of health care,” the complication rates are relatively low and even when women obtained the medication in a doctor’s office, they would normally go to urgent care or an ER if they had complications later, rather than seeing the prescribing doctor.
But she said, in the current climate, “If you’re in a state like Texas, and you do suffer complications, are you going to go to the ER? Even though the Texas law and some other states exempt women from punishment, a lot of people don’t know that. And even if they do know that, they may worry that someone else may get into trouble.”
Francis, at the University of Utah, noted the wording of the Full Faith and Credit Clause, which says that “Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state. And the Congress may by general laws prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof.”
The clause, she said, “both recognizes the need for states to respect one another, and recognizes the inevitability that states are going to butt heads.”
Congress is also charged with regulating interstate commerce.
But with a federal abortion ban unlikely, “It may be that we’re just going to be a country where these controversies are going to continue, and where if they end up getting resolved in the court, it’ll be another way of thinking about the courts as essentially political actors. And that may not be the way we want to see our courts either,” Francis said.
“We are facing questions we have never fully faced as a federalist country,” she said.
Meanwhile, Texas, which was at the center of Roe v. Wade, the law that governed abortion policy in the U.S. for nearly a half century, may find itself again at the U.S. Supreme Court, this time over medication abortions.
“The one thing I think everyone should agree on is that when the Supreme Court said Roe is gone, and we thought it’s going to be so much easier and the courts are going to be out of it, we can all agree that wasn’t true, Ziegler said. ”Whatever you think of abortion, they’re just as much in it as they’ve ever been.”