Texas House Bill 7 will take effect on Dec. 4 which will bar mailing abortion medication and create civil penalties for health care providers who make them available. The new law could strengthen Texas’ case against telehealth.
The new law allows any private citizen to sue medical providers for a minimum penalty of $100,000, and according to backers of the bill, would also allow suits against drug manufacturers.
While other states have passed legislation targeting abortion medications by classifying them as a controlled substance, the Texas law targets the people who distribute them and its reliance on civil suits.
Medical providers say the law won’t stop them from providing abortions to people in Texas, with three major telehealth practices confirming they intend to keep prescribing and mailing abortion medications to patients in Texas, citing other states’ laws that would shield them from Texas-based suits.
Pharmaceutical companies have not responded to how they will proceed. Anti-abortion activists say they plan to launch civil lawsuits against health care providers who continue to mail medications to Texas. Those private suits could accelerate a clash between state abortion laws and is expected to be resolved by the U.S. Supreme Court.
At issue is the conflict between individual state abortion restrictions and shield laws in other states that protect abortion providers from out-of-state prosecutions. Those laws say that state governments will not comply with extraterritorial efforts to punish health care providers for offering services legal in the state where they reside — including abortions. Almost half of all states have some form of shield law, though only eight explicitly protect providers no matter where a patient is located.
Under those laws, medical professionals living in states where abortion is legal have continued to mail medications to patients. Research suggests that 1 in 4 abortions are now done through telehealth, with about half of those in states with bans or restrictions.
Already, health professionals mailing abortion pills to Texans have been sued. Texas Attorney General Ken Paxton has brought a case against Margaret Carpenter, a physician in New York, for mailing abortion pills to the state. New York, state officials have cited the shield law in declining to enforce a Texas court’s ruling that fined Carpenter $113,000.
Jonathan Mitchell, a prominent lawyer who has helped craft many of the state’s anti- abortion laws, has brought wrongful death lawsuits — typically used to sue someone for a death caused by negligence or recklessness — against multiple telehealth providers, arguing an abortion is the death of a person. Those cases are still making their way through court.
HB 7 closely resembles a 2021 Texas law that effectively outlawed abortions after six weeks of pregnancies — the majority of abortions — months before the fall of Roe v. Wade. That law pioneered the use of private civil suits to stop the provision of most abortions.
Though the law halted abortion providers from operating in the state, there were no successful lawsuits against health care providers. That, coupled with the rise of blue state laws to protect health care providers, has left many who offer telehealth skeptical that the new Texas law will immediately reach them.