Since the U.S. Supreme Court's Dobbs decision in 2022 ended a constitutional, nationwide right to abortion, states have passed their own, oftentimes widely divergent laws.
Louisiana has a near-total ban and criminal penalties for providers, for example, while in New York, there is an "absolute right" to abortion until 24 weeks in a pregnancy.
As some states outlaw abortion, others have passed shield laws to protect abortion providers and patients within their borders from states that have restricted the procedure.
The clashing state regulations could put Louisiana at the center of an unprecedented legal conflict, one that experts say is likely to make it to the U.S. Supreme Court.
Louisiana's criminal prosecution of Margaret Carpenter, a New York doctor who mailed abortion pills to West Baton Rouge Parish for use in an abortion, may be the spark for what legal scholars have called a looming "war between the states."
"It can feel a little bit like an arms race," said Carmel Shachar, a professor of law and health policy at Harvard.
She gave an example: "Louisiana and Texas brought cases against Dr. Carpenter, so a lot of shield-law states are adding provisions eliminating provider information from the prescriptions written for shield law patients."
Carpenter is one of the founders of the Abortion Coalition for Telemedicine, a group formed after the Dobbs decision whose mission is to support "clinicians who make safe, timely, and affordable telemedicine abortion care available to patients in all 50 states."
The majority of women who have an abortion do so by taking pills, a number that has risen steadily ever since the U.S. Food and Drug Administration approved the drug mifepristone for abortion 25 years ago, according to the Guttmacher Institute, which supports abortion rights.
And now with the rise of telehealth, an increasing number of women are accessing abortion pills online, according to data from the Society of Family Planning, which supports abortion access.
Louisiana indictment of doctor in New York
A grand jury in West Baton Rouge Parish indicted Carpenter for the felony of "criminal abortion by means of abortion-inducing drugs" for mailing abortion pills to the mother of a pregnant Port Allen teen.
New York Gov. Kathy Hochul, a Democrat, has said she will not allow the doctor to be extradited or turned over to Louisiana for prosecution, "not now, not ever."
But Louisiana Attorney General Liz Murrill said the case "is far from over."
"We are continuing to evaluate our options to ensure that Dr. Carpenter faces justice in Louisiana," she said.
Tony Clayton, the local district attorney prosecuting the case, echoed that sentiment.
"We will take all legal measures afforded to us to extradite Dr. Carpenter back here, and you will see something along those lines in the not-so-distant future," he said.
In Texas, officials are pursuing a civil case against Carpenter for prescribing abortion pills via telehealth.
Texas Attorney General Ken Paxton late last month said he filed a legal petition in New York to force a court there to enforce his state's judgment against the doctor.
Paxton sued and won a default judgment against Carpenter for $100,000 in damages. But a New York county clerk this spring refused to file the judgment, citing the state's shield law.
Legal and abortion scholars speculate that disputes arising from Louisiana or Texas could land before the Supreme Court.
What are abortion shield laws?
When a federal right to abortion was overturned in 2022, abortion bans and other restrictions took effect in many states across the country.
In response, some other states enacted laws specifically protecting doctors, patients and others involved in an abortion from prosecution by those states, legal protections known as shield laws.
There are abortion shield laws in 22 states, eight of which protect telehealth providers regardless of where the patient lives, according to the Center on Reproductive Health, Law, and Policy at UCLA, which maintains a guide of shield laws across the country.
New York's shield law prohibits law enforcement there from cooperating or sharing information with out-of-state investigations into abortion care that is legal under New York law. And courts there can't issue subpoenas for out-of-state proceedings related to legal care.
New York's shield law also blocks law enforcement from arresting or extraditing anyone for providing abortion care that's legal under New York law in response to out-of-state proceedings.
It's among the states that protect providers from civil and criminal liability imposed by other states when providing services via telehealth to patients in other states.
Telehealth law conflicts
Without cooperation from New York, Louisiana's criminal case against Carpenter is stalled, and Louisiana's options to move it forward remain murky.
"Telehealth has become this flashpoint between states that are choosing really different directions to go on this question of abortion," said Shachar, the Harvard law professor.
Because the practice of medicine is regulated at the state level, each state gets to decide whether its regulations view telehealth as taking place at the location of the provider or the patient, she said.
"Until recently, that answer was always wherever the patient is physically located at the time," she said.
But abortion shield laws are now "flipping that assumption," with some states changing their rules about the location of telehealth services, Shachar said. "So then you have this conflict where essentially you have two states trying to claim ownership over the same telehealth visit."
Choice of law
There is an entire area of the law known as "conflict of laws" that deals with situations that could be handled in more than one jurisdiction and that raise "choice of law" questions about which jurisdiction's laws should be used.
Many legal scholars argue that the state-by-state patchwork for abortion laws is raising unprecedented legal questions in this area. That's because regulations from one state to another could now be in direct conflict -- especially between states trying to impose liability for abortion-related actions on people located in other states and those with shield laws batting away those attempts.
"On the subject of abortion, the so-called 'United' States of America are becoming more disunited than ever," George Washington University law professor Paul Schiff Berman wrote in a 2023 article titled "Conflicts of Law and the Abortion War Between the States."
"These partisan and geographic divides create perhaps the biggest set of nationwide conflicts of law problems since the era of the Fugitive Slave Act before the Civil War," wrote Berman and his coauthors.
"We cannot predict with certainty which state's law would apply in an interstate abortion situation," Susan Frelich Appleton, a law professor at Washington University, wrote in a 2023 paper analyzing abortion and choice of law issues.
Legal scholars also note that jurisdictional issues between states don't often come before the Supreme Court, leaving little direct precedent to guide abortion and choice-of-law conflicts.
In the Carpenter case, Louisiana courts and New York courts will assess those in fundamentally different ways.
"The thing that will probably drive these cases to the Supreme Court is that conflicts of law aspect, because what you're going to have is basically two parallel legal structures," said Shachar.
"Really, the only way to resolve it is to take it out of New York and Louisiana and bring it to the Supreme Court," Shachar said. "That's part of what the Supreme Court was designed to do, is resolve conflicts between the states."
Just one constitutional issue in the Carpenter indictment stems from the extradition clause of Article IV of the U.S. Constitution, which regulates the relationship between the states.
The extradition clause says that states have to respect extradition requests from other states for fugitives who commit crimes and "flee from justice." Carpenter, however, was never physically in Louisiana, nor did she flee from that state to New York.
Typically, states cooperate on extradition requests, but with the rise of conflicting abortion laws, that cooperation could break down.
Clayton, the district attorney, said that because Louisiana can show probable cause that Carpenter caused harm through an act that is criminal under Louisiana law, other states are required to honor that finding.
"We're called the United States of America for a reason," he said. "You can't have folks go run to another state and hide under the political leadership of their state and avoid prosecution."