Louisiana’s top law enforcement officials announced that they are seeking the extradition of a New York doctor for prescribing and mailing abortion pills to the mother of a pregnant minor in the Pelican State, where the procedure is prohibited in nearly all circumstances.

Dr. Margaret D. Carpenter and her practice, Nightingale Medical, were named in a grand jury indictment filed in January by West Baton Rouge Parish District Attorney Tony Clayton, according to court documents reviewed by Law&Crime. Carpenter is based in New Paltz, located some 80 miles north of New York City.

Carpenter, the one-page indictment says, “on or about April 5, 2024, did knowingly cause an abortion to occur by means of delivering, dispensing, distributing, or providing a pregnant [woman] with an abortion-inducing drug,” the one-page indictment says. Doing so was “[c]ontrary to the law of the State of Louisiana and against the peace and dignity of the same,” the indictment adds.

The minor’s mother, whose name has not been released to protect the identity of the child, has also been indicted on felony charges in connection to the event.

While all states typically enforce extradition agreements, it does not appear that will be the case when states with abortion bans enacted after the U.S. Supreme Court overturned Roe v. Wade find themselves facing of against states that do allow the procedure.

1. Home
2. Daily News
3. SCOTUS will decide whether Medicaid beneficiaries…

U.S. Supreme Court

SCOTUS will decide whether Medicaid beneficiaries can sue over state’s defunding of Planned Parenthood

By Debra Cassens Weiss

December 23, 2024, 9:23 am CST

The U.S. Supreme Court agreed Wednesday to consider whether Medicaid beneficiaries can sue over South Carolina’s decision to defund Planned Parenthood.

Although federal law generally bars Medicaid from paying for abortions, it does allow payment to abortion providers for other medical services, SCOTUSblog explains. Planned Parenthood had provided birth control, cancer screenings and physical exams to low-income South Carolina residents before the state cut off all Medicaid funds for the organization in 2018, according to the group’s brief opposing cert.

Planned Parenthood South Atlantic and one of its Medicaid patients sued.

At issue is whether beneficiaries can sue under Section 1983 of the Civil Rights Act under an “any-qualified provider” provision of the Medicaid Act.

The law provides that “any individual eligible for medical assistance” under the law can obtain care from any institution ready and qualified to perform the services, according to a brief opposing cert by Planned Parenthood.

Besides SCOTUSblog, publications with coverage include the New York Times, the Washington Post and USA Today. How Appealing links to additional coverage.

The 4th U.S. Circuit Court of Appeals at Richmond, Virginia, had allowed the lawsuit, according to New York Times.

“This case is, and always has been, about whether Congress conferred an individually enforceable right for Medicaid beneficiaries to freely choose their health care provider,” the 4th Circuit said. “Preserving access to Planned Parenthood and other providers means preserving an affordable choice and quality care for an untold number of mothers and infants in South Carolina.”

Federal appeals courts are split on the issue of a private right of action, according to South Carolina.

“Whether a private party can drag a state into federal court for disqualifying a provider should not turn merely on where that state is located,” says the state’s cert petition.

But the brief opposing cert argues that there is no split because the two appeals courts that found no private right of action ruled in cases in which a medical provider was terminated for cause, a factor not present in the South Carolina case.

South Carolina is represented by Alliance Defending Freedom, a conservative legal advocacy group.

“Taxpayer dollars should never be used to fund facilities that make a profit off abortion,” said Alliance Defending Freedom lawyer John Bursch in a statement cited by news coverage.

The case is Kerr v. Planned Parenthood.

Texas Attorney General Ken Paxton has filed a lawsuit against an abortion activist doctor in New York for “unlawfully” mailing prescription pills to the Lone Star State that “ended the life of an unborn child” and resulted in “serious complications” for the 20-year-old mother, according to the suit — marking the first cross-state abortion legal battle of its kind, a report says.

Dr. Margaret Carpenter, founder of the Abortion Coalition for Telemedicine, is accused of mailing the “abortion-inducing drugs,” which are illegal to provide in Texas but not New York thanks to abortion “shield” laws, to a Collin County resident between the months of May and July. Paxton’s suit, which was filed on Thursday, claims to outline why and describes what allegedly happened as a result.

1. Home
2. Daily News
3. Anti-abortion princess explains her friendship…

U.S. Supreme Court

Anti-abortion princess explains her friendship with Justice Alito after he discloses $900 gift

By Debra Cassens Weiss

October 23, 2024, 12:18 pm CDT

A German princess has said she first met U.S. Supreme Court Justice Samuel Alito at a Catholic conference while summering in Rome.

Princess Gloria von Thurn und Taxis, whose primary home is a 500-room palace, told the New York Times that she was introduced to Alito by a priest who is a mutual acquaintance. She couldn’t recall the exact date, but the New York Times said Alito was in Rome for a 2018 event sponsored by a law school.

Princess Gloria said she immediately liked Alito and his “very fun, bubbly” wife, so she invited them to a music festival in which she opens her palace to guests.

“I met him as a Catholic, and I realized that he’s a judge who is pro-life,” Princess Gloria told the New York Times. That was a great thing, she said, “because very few people I know are pro-life.”

The Alitos stayed in the palace when they attended the music festival in 2023; the accommodation does not have to be disclosed. The festival included a performance of “The Magic Flute” and a concert by a Michael Jackson tribune band. Princess Gloria also obtained tickets for the Alitos to attend a music festival celebrating the work of German composer Richard Wagner.

Alito valued the gift of concert tickets at $900.

Princess Gloria was once dubbed “Princess TNT” for being a “wild version” of Princess Diana of Wales, a member of the British royal family, according to the New York Times. In her younger days, she sported a multicolored mohawk and rode motorcycles. She became more religious after her husband died in 1990.

The 64-year-old princess is now “an anti-abortion and anti-immigration provocateur” with “ties to the European far right,” the New York Times said.

Princess Gloria toured the Supreme Court in 2019 and posed with Alito and Justice Brett Kavanaugh. With her on the tour were the president of a nonprofit that opposes the legalization of same-sex marriage and a “right-wing German cardinal,” according to the New York Times.

She said she isn’t political, however.

“The only thing that I care about in politics is that somebody is fighting abortion and helping reproduction rates go up,” she told the New York Times. “I think that killing our own offspring and reducing our reproduction rates, eventually, we will kill our own kind.”

Hat tip to How Appealing.

A group of Louisiana health care providers and reproductive rights advocates are challenging the state’s unprecedented action of classifying abortion pills mifepristone and misoprostol to the state’s list of controlled substances.

Gov. Jeff Landry, a Republican, signed Louisiana Act 246 into law in May — a choice which effectuated the most extreme legal action yet taken on the drugs. Under the law, the two medications, which have been approved by the U.S. Food and Drug Administration (FDA) for more than two decades, are now classified as Schedule IV drugs. The classification puts mifepristone and misoprostol on part with certain painkillers and mood-altering medications that merit greater oversight due to their potential for abuse or dependence.

1. Home
2. Daily News
3. 5th Circuit becomes ‘proving ground’ for…

Judiciary

5th Circuit becomes ‘proving ground’ for aggressive arguments by conservatives

By Debra Cassens Weiss

September 4, 2024, 8:59 am CDT

The 5th U.S. Circuit Court of Appeals at New Orleans has become “a proving ground for some of the most aggressive conservative arguments in American law,” according to the New York Times.

When the U.S. Supreme Court overturned the right to abortion in June 2022, for example, the 5th Circuit had teed the case up for Supreme Court review, the New York Times reported last week.

In the term beginning this fall, the Supreme Court has agreed to hear five 5th Circuit cases, including a decision challenging the regulation of untraceable “ghost guns” that are made with kits.

The 5th Circuit’s decisions have been “so audacious” that the Supreme Court overruled the appeals court seven times last term, according to the article.

Overturned decisions would have curbed access to the abortion drug mifepristone, would have allowed gun possession by domestic abusers, and would have allowed states to sue over U.S. social media pressure.

Six of the 5th Circuit’s 17 judges are appointees of former President Donald Trump, who appointed 54 appeals court nominees, the most of any president since former President Jimmy Carter, the article reports.

According to a article in the Texas Tribune, the 5th Circuit’s adoption of conservative positions, even when overturned, helps shift the debate to the right.

Decisions by the 5th Circuit “have the effect of taking legal theories that were off the wall and putting them on the wall,” said Steve Vladeck, a professor at the Georgetown University Law Center, in an interview with the Texas Tribune.

Even when conservative decisions don’t prevail, “the effect is to make these cases of national import and give credibility to those arguments,” Vladeck said.

Akhil Reed Amar, a professor at Yale Law School, told the New York Times that the 5th Circuit’s conservative opinions could stem partly from appellate judges jockeying for a nomination to the Supreme Court.

“If you’re MAGA and you think Donald Trump is going to win the election, you can be in the right lane or hard-right lane,” Amar said. “The hard-right lane is the better lane to be in if you want to get yourself nominated.”

1. Home
2. Daily News
3. DA acknowledges unwarranted prosecution of…

Ethics

DA acknowledges unwarranted prosecution of woman for ‘clearly not criminal’ abortion

By Debra Cassens Weiss

March 4, 2024, 9:20 am CST

The district attorney in Starr County, Texas, has agreed to a one-year probated suspension for the murder prosecution of a woman who had a self-induced abortion.

The district attorney, Gocha A. Ramirez, oversaw an assistant district attorney who pursued the charge, according to the statement of facts in a Jan. 25 agreed judgment of probated suspension.

The Associated Press and the Texas Tribune covered the agreement last week. The Marshall Project noted the Texas Tribune article.

Ramirez falsely told the chief disciplinary counsel that he was not aware of the assistant district attorney’s actions, according to the stipulated facts. The prosecution was for acts that were “clearly not criminal,” the judgment said.

Ramirez’s office dropped the murder charge after the woman spent two days in a detention center.

At the time of the prosecution, Texas law authorized private citizens to sue for damages if a woman has an abortion after cardiac activity can be detected. Texas later banned nearly all abortions after the U.S. Supreme Court overturned Roe v. Wade in June 2022, just months after the woman’s prosecution.

In an interview with the Associated Press last week, Ramirez said he “made a mistake” in the abortion case. He agreed to the probated suspension, so his office can keep prosecuting cases, he said. No one else is facing discipline in connection with the incident, Ramirez told the AP.

Ramirez will pay $1,250 for the chief disciplinary counsel’s attorney fees and expenses. The suspension won’t take effect unless Ramirez fails to meet terms and conditions that include refraining from other violations of ethics rules.

Alabama’s conservative-leaning Supreme Court decided Friday that frozen embryos in a lab count as “minor children,” and that the embryos’ “parents” can bring a wrongful death claim against a clinic after the embryos were accidentally dropped on the floor.

The unprecedented ruling pushes Alabama — a state that has already announced an intention to criminally prosecute women who terminate pregnancies with abortion pills — even deeper into a conservative legal agenda.

The underlying lawsuit began when three couples — James LePage and Emily LePage, William Tripp Fonde and Caroline Fonde, and Felicia Burdick-Aysenne and Scott Aysenne — sued the Center for Reproductive Medicine for negligence and wrongful death alleging that a fertility clinic in Mobile negligently allowed a patient to wander into the embryology lab, pick up five fertilized embryos, then drop those embryos rendering them unusable for the in vitro fertilization (IVF) process.

In their court filings, the plaintiffs referred to themselves as the “Parents” of their respective embryos and argued that the Alabama constitution guarantees equal protection to those embryos as “unborn children.” A trial judge dismissed their lawsuit in 2022 after finding that the state’s wrongful death statute did not allow individuals to recover for the loss of frozen embryos.

However, in a ruling Friday, the Alabama Supreme Court reversed that decision, agreed with the plaintiffs, and declared that frozen embryos are, in fact, children. The plaintiffs are now permitted to proceed with their legal theory that dropping fertilized embryos amounts to causing wrongful death as the case moves toward trial. Throughout the 25-page ruling for the majority, Justice Jay Mitchell referred to the frozen embryos as “extrauterine children” and “unborn children who are located outside of a biological uterus at the time they are killed,” and said that the state’s wrongful death law applies to “to all unborn children, regardless of their location.”

Mitchell appeared to arrive easily at the conclusion that the statute was intended to apply to frozen embryos. He noted that the parties and “all members of this Court” agree that an “unborn child is a genetically unique human being whose life begins at fertilization and ends at death,” and that “everyone acknowledges” the same to be true of how the terms are used in “ordinary conversation.”

The only question remaining, Mitchell said, was whether there was some unwritten exception to be applied when the unborn children “are not located … inside a biological uterus … at the time they are killed.” Any ambiguity in statutory language must be resolved “in favor of protecting unborn life,” said the justice.

Mitchell wrote that the state’s Wrongful Death of a Minor Act is “sweeping and unqualified” and applies to “all children, born and unborn, without limitation.”

“It is not the role of this Court to craft a new limitation based on our own view of what is or is not wise public policy. That is especially true where, as here, the People of this State have adopted a Constitutional amendment directly aimed at stopping courts from excluding ‘unborn life’ from legal protection,” he reasoned.

Because the court was unwilling to create what it called “a new limitation” on the application of Alabama’s wrongful death statute, the majority concluded that the law must authorize plaintiffs to make claims for the loss of “minor children” who were frozen embryos in a lab.

1. Home
2. Daily News
3. Federal guidance on stabilizing emergency…

Health Law

Federal guidance on stabilizing emergency abortions can’t be enforced in Texas, 5th Circuit says

By Debra Cassens Weiss

January 3, 2024, 10:20 am CST

A federal appeals court ruled Tuesday that the federal government can’t enforce guidance in Texas that requires hospitals to provide stabilizing emergency abortions to prevent serious jeopardy to a patient’s health in emergency situations.

The 5th U.S. Circuit Court of Appeals at New Orleans ruled for the state of Texas in its challenge to federal guidance interpreting the Emergency Medical Treatment and Active Labor Act, known as the EMTALA. The federal law applies to hospitals that receive Medicare funds.

The appeals court said the guidance “exceeds the statutory language” and “goes beyond EMTALA by mandating abortion.” The guidance alters a substantive legal standard, and it should have been subject to notice and comment, as required by the Medicare Act, the 5th Circuit said in a Jan. 2 opinion by Judge Kurt D. Engelhardt.

The appeals court upheld an injunction barring enforcement of the guidance in Texas and against members of two organizations that joined Texas to challenge the law. The two groups are the American Association of Pro-Life Obstetricians & Gynecologists and Christian Medical & Dental Associations.

Reuters, Bloomberg Law and Courthouse News Service are among the publications with coverage. How Appealing linked to additional coverage.

The EMTALA requires necessary stabilizing treatment for an emergency medical condition regardless of a patient’s ability to pay. The law defines an emergency medical condition as a condition that, without medical treatment, could reasonably be expected to result in serious impairment to bodily functions, serious dysfunction to any bodily organ, or serious jeopardy to the health of the patient (or in the case of a pregnant person, the health of the person or their unborn child).

The guidance issued by the Biden administration states that a physician must perform an abortion if a pregnant patient has an emergency condition as defined by the EMTALA, and abortion is the necessary stabilizing treatment. The guidance states that state law is preempted if it categorically bans abortion or if the state law has a lifesaving exception that is more narrow than the EMTALA’s definition of an emergency medical condition.

But the EMTALA “does not govern the practice of medicine,” the appeals court said. “While EMTALA directs physicians to stabilize patients once an emergency medical condition has been diagnosed,” the 5th Circuit said, “the practice of medicine is to be governed by the states.”

The Texas abortion ban, known as the Human Life Protection Act, bans abortions unless the pregnancy “places the female at risk of death or poses a serious risk of substantial impairment of a major bodily function.”

The Texas law does not directly conflict with the EMTALA, the appeals court said, because it “does not stand in the way of providing stabilizing treatment for a pregnant woman or the unborn child.” The EMTALA requires hospitals “to stabilize both the pregnant woman and her unborn child.”

“EMTALA does not provide an unqualified right for the pregnant mother to abort her child especially when EMTALA imposes equal stabilization obligations,” the appeals court said.

The case is Texas v. Becerra.

It follows a Texas Supreme Court ruling last month that held that a woman whose fetus has a genetic abnormality that is nearly always fatal can’t get an abortion under Texas law.

I do not recall ever facing a new year with such a sense of trepidation and even fear of what to expect. The presidential election campaign of 2024 promises to be unlike any we have seen in American history, and it seems inevitable that the U.S. Supreme Court will play a large role. And the docket for the current term is filled with major issues about controversial matters, such as abortion, administrative law, gun rights and the First Amendment and social media.

The 2024 presidential election

Even with the election 10 months away, already it is clear that the Supreme Court is going to be involved. On Dec. 19, the Colorado Supreme Court, in a 4-3 decision, ruled that Donald Trump was disqualified from being on the Republican primary ballot for president because of Section 3 of the 14th Amendment. This provision precludes anyone who has previously taken an oath of office from holding public office if they have “engaged in insurrection or rebellion” against the United States. On Dec. 28, the Secretary of State of Maine ruled that Trump was disqualified from being on the ballot in that state. On the other hand, the Minnesota Supreme Court came to an opposite conclusion.

It is important for the United States Supreme Court to take the Colorado case and decide quickly whether Trump is disqualified from being on the ballot. It is urgent that this issue be resolved early and for the entire country before a significant number of primaries. The nightmare would be for the issue to come to the court only after Trump had sewn up the nomination or even worse, after he had been selected as president by the Electoral College.

But this is not the only case coming to the court with implications for the election. Trump faces criminal prosecution in federal court in Washington, D.C., for his efforts to undermine the 2020 election. Trump has claimed that he has absolute immunity from prosecution because it involves actions he took during the time he was president. U.S. District Judge Tanya Chutkan ruled against Trump’s claim of immunity, concluding that his actions were not in carrying out the duties of the presidency. Special Counsel Jack Smith asked the Supreme Court to grant review before the matter was heard by the D.C. Circuit. But on Dec. 22, the court, without opinion, denied this request. The D.C. Circuit will hear oral arguments on Jan. 9, and whatever it decides, it is likely there will be review in the Supreme Court. The crucial question will be whether the court grants expedited review so that the criminal trial can proceed before the November 2024 election.

The court granted review in Fischer v. United States, which involves whether a federal statute, 18 U.S.C. §1512(c), which prohibits obstruction of congressional inquiries and investigations, includes acts unrelated to congressional investigations. Although not the statute used in the Trump prosecution, it is the basis for most of the cases against those involved in the Jan. 6 assault on the Capitol.

And, of course, there likely will be many other suits during the election campaign and perhaps after the November election.

Abortion

The Supreme Court has granted review in its first case concerning abortion since overruling Roe v. Wade in 2022. In Food and Drug Administration v. Alliance for Hippocratic Medicine, which has not yet been scheduled for oral arguments, the court will review a 5th Circuit decision that overturned actions of the FDA which made it easier to prescribe mifepristone, a drug used to induce abortions. Although the 5th Circuit overruled a district court decision that would have taken mifepristone entirely off the market, it found that the FDA acted in an arbitrary and capricious manner when it made it easier in 2016 and 2021 to administer the drug.

In 2016, the FDA said that the drug could be used until the 10th week of pregnancy rather than just to the seventh week, reduced the number of required in-person clinical visits from three to one and allowed non-physician health care providers licensed under state law to prescribe and dispense drugs—such as nurse practitioners—to prescribe and dispense mifepristone. It also reduced the dosage from 600 mg to 200 mg.
In 2021, the FDA eliminated the requirement that mifepristone be obtained in person; it was the only drug where there was such a requirement.

It is quite possible the court will not reach the question of the FDA’s authority, instead deciding the case on standing grounds. One of the questions presented is whether the doctors who oppose abortion are injured by the easier availability of mifepristone.

More than half of all abortions in the United States are medically induced using mifepristone. In states that have greatly restricted abortions, including some that have prohibited virtually all abortions since the court overruled Roe v. Wade, medically induced abortions have taken on even greater importance.

Administrative law

This will be an important term for the Roberts court and the administrative state. On Nov. 29, the court heard oral arguments in Securities and Exchange Commission v. Jarkesy, that poses several important issues: Does it violate the Seventh Amendment right to a jury trial for a federal agency to impose monetary penalties? Is it an impermissible delegation of powers for Congress to let the agency choose whether to proceed in federal court or in agency proceedings? Is it a violation of separation of powers to have administrative law judges with protection from removal when there are limits on removal of the top agency officials?

On Jan. 17, the court will hear two cases—Loper Bright Enterprises v. Raimondo and Relentless v. Department of Commerce—about whether it should end Chevron deference, the principle that courts should defer to federal agencies when they interpret the statutes they operate under. These are much anticipated cases about whether the court will overrule Chevron v. Natural Resources Defense Council (1984), which held that federal courts should give deference to agencies when they are carrying out their authority under federal statutes.

First Amendment and social media

Despite the enormous importance of the internet and social media for freedom of speech, there have been relatively few Supreme Court cases about it. That will change this term, as there are three sets of cases addressing the issue.

On Oct. 31, the court heard oral arguments in O’Connor-Ratcliff v. Garnier and Lindke v. Freed. Both involve the question of whether it violates the First Amendment for public officials, with private social media accounts where government business is discussed, to bar critics from access.

In Moody v. NetChoice and NetChoice v. Paxton, which have not yet been set for oral arguments, the court will decide the constitutionality of state laws that prohibit internet and social media platforms from engaging in content moderation. The cases involve laws in Florida and Texas respectively. The 11th Circuit struck down the Florida law as violating the First Amendment, while the 5th Circuit upheld the Texas law. The cases have huge significance in terms of the ability of state governments to regulate the internet.

Finally, there are two cases, also not yet set for oral argument, that involve when the speech of government officials is so coercive as to infringe the First Amendment. In Murthy v. Missouri, the 5th Circuit found that the Biden administration violated the First Amendment by encouraging and pressuring social media companies to remove false speech. In National Rifle Association v. Vullo, the court will consider whether Maria Vullo, then the head of New York’s Department of Financial Services, violated the First Amendment when she urged banks and insurance companies to consider the “reputational risks” from doing business with gun-rights groups like the National Rifle Association. In 1963, in Bantam Books v. Sullivan, the court found that threats of prosecution by government officials were coercion that violated the First Amendment. The court has not addressed this since, but it will do so in these two cases.

Guns

On Nov. 7, the court heard oral arguments in United States v. Rahimi, which involves the constitutionality of a federal statute making it a crime for a person under a restraining order in a domestic violence case from having a firearm. The 5th Circuit declared this unconstitutional because such restrictions did not exist in 1791 when the Second Amendment was adopted. Rahimi provides the court the opportunity to clarify the test that it announced in 2022 in New York State Rifle and Pistol Association v. Bruen. The decision likely will have great ramifications for many other federal, state and local gun regulations.

In conclusion

In just the last two years, the court has overruled Roe v. Wade, dramatically expanded gun rights, significantly changed the law concerning the religion clauses of the First Amendment, imposed a substantial new limit on administrative agencies (the major questions doctrine), effectively overruled 45 years of precedents allowing universities to engage in affirmative action, and for the first time, found a First Amendment right for businesses to violate anti-discrimination laws when they are engaged in expressive activity. There is every reason to believe that 2024 will be another momentous year for the Supreme Court.

---

Erwin Chemerinsky is dean of the University of California at Berkeley School of Law and author of the newly published book A Momentous Year in the Supreme Court. He is an expert in constitutional law, federal practice, civil rights and civil liberties, and appellate litigation. He’s also the author of The Case Against the Supreme Court; The Religion Clauses: The Case for Separating Church and State, written with Howard Gillman; and Presumed Guilty: How the Supreme Court Empowered the Police and Subverted Civil Rights.

---

This column reflects the opinions of the author and not necessarily the views of the ABA Journal—or the American Bar Association.