“If men could get pregnant, abortion would be a sacrament.” Florynce Kennedy.

“I’ve noticed that everybody that is for abortion has already been born.” Ronald Regan.

Dr. Margaret Carpenter of New Paltz, New York, was indicted by a Louisiana state grand jury for prescribing and providing mifepristone, the so-called abortion pill, to a pregnant girl in Louisiana. Two-thirds of this country’s abortions involve the use of mifepristone. The abortion pill is legal in New York; it is illegal in Louisiana. (Louisiana bans all abortions at whatever stage of pregnancy and has no exceptions, even for rape or incest.) The Louisiana crime carries a sentence of imprisonment of up to five years.

The mother of the pregnant Louisiana girl ordered the abortion pill online. The mother also was indicted, and news reports indicate that she was taken into custody and released on bail.

Carpenter’s indictment appears to be the first criminal case of an out-of-state provider of abortion pills brought by a state that bans them. I have been asked by friends to answer some basic questions about the indictment, and here are my answers:

Can the girl who took the abortion pills be charged? Answer: No. The Louisiana law specifically exempts the pregnant woman from criminal charges.

Dr. Carpenter took no actions within the borders of Louisiana that could be considered illegal. Can she still be criminally charged? Answer: Yes. If I am in New York and hire someone to kill my business partner in New Jersey, and the partner is killed as a result, I have committed a murder for which New Jersey can prosecute me.

But you might say, that is different. Murder is a crime in both New York and New Jersey. The abortion pill may be illegal in Louisiana, but it is not in New York. The doctor did nothing that was illegal where she was. Can Louisiana still make it a crime to ship the abortion pill, legal in New York, to Louisiana? Answer: Yes. Imagine that New York makes an automatic firearm illegal, while it is legal to sell and possess it in North Carolina. A gun shop owner, knowing that the firearm is illegal in New York, ships it to New Paltz. He can be charged with a crime in New York.

Even if Dr. Carpenter can be charged in Louisiana for shipping a drug there that is legal in New York, will she be extradited from New York to stand trial in Louisiana? Answer: No. Extradition is the process by which one state demands the return of a criminally accused fugitive who is in another state. This is generally a routine process that is authorized by the federal constitution. The governor of the demanding state sends a signed warrant to the governor of the state where the fugitive is present. The fugitive is detained, and the demanding state sends law enforcement to transport the fugitive back to the host state to face the music.

Extradition, however, applies to “fugitives” and Carpenter is not one. The term means someone who had been present in the demanding state, (allegedly) had committed crimes there, and has now left that state. If you were not in that state when the supposed crime was committed, you are not a fugitive from that state. New York follows the normal extradition rule: If extradition is asked for someone who was not in the demanding state at the time of the crime, that person will be extradited only if the alleged conduct is criminal in both states. That, of course, is not the situation for the doctor. Her actions do not constitute a crime in New York, and she should not be extradited under New York law.

But there is another reason she won’t be extradited. New York has enacted a Telemedicine Health Shield Law. It protects New York health care providers for activities precisely of the kind Dr. Carpenter did. One provision prohibits New York government officials from cooperating with an out-of-state investigation seeking to impose liability for reproductive health care activities lawful in New York regardless of patient location. The law also says that the New York Governor may not extradite anyone for legally protected reproductive health care in New York. The law was enacted precisely to protect New York doctors prescribing abortion pills to women in states where they are banned. (In the last week, New York’s law was expanded. Now only the name and address of the medical practice, not the doctor’s name, will be necessary on the prescription sent to states that ban the medicine.)

However, even though Dr. Carpenter will not be extradited by New York, her life can still be greatly affected. Of course, she will have to eschew the New Orleans Mardi Gras, but she also has to be careful about visiting other places, especially states with abortion bans. She could, for example, be arrested in Texas, which might then extradite her to Baton Rouge. Indeed, an unscheduled airline stop in Dallas could have her in handcuffs.

Could Dr. Carpenter be tried in absentia? Answer: No. A trial in absentia is one without the presence of the accused. Such trials do happen, but constitutional and state laws require a knowing and voluntary waiver of the right to attend trial. The procedures vary around the country, but everywhere they require the trial court to warn a defendant about the consequences of not appearing for trial. In other words, Dr. Carpenter could only be tried in absentia if she at first appeared before Louisiana courts, and without extradition or a strong sense of martyrdom, that is unlikely to happen.

What if Dr. Carpenter were kidnapped and taken to Louisiana? Could she be tried? Answer: Yes. Certain items of evidence can be suppressed when someone is brought to court illegally, but the case itself can go on. There are many examples of this happening sometimes from state to state, often by “bounty hunters.” The public becomes more aware when someone is brought by force to the United States without authorization from the foreign government.  (Although instead of using “kidnapping” and like terms, we use euphemisms such as “extraordinary rendition.”) A famous example was Panamanian strong man Manuel Noriega, who was indicted in Miami for drug and money laundering charges. The U.S. invaded Panama, captured Noriega, and flew him to Florida, where, after trial, he received a forty-year sentence. Of course, if Carpenter were kidnapped in New Paltz and taken to Louisiana, the abductors would be committing New York and federal crimes.

A medical health professional providing abortion pills to a person in a state where they are banned prompts us to consider the legislative legacy of Anthony Comstock.

Comstock, a United States Postal Inspector and officer of the New York Society for the Suppression of Vice in the late nineteenth century, is considered the force behind the Comstock Act(s) of 1873. These laws criminalized the use of the mails and common carriers to distribute obscene, lewd, and lascivious materials, which Comstock basically defined as anything having to do with sex. It also criminalized the distribution of prohibited contraceptive devices and information. It similarly criminalized any methods or information about abortion.

The Comstock Act is still on the books, although its use has largely disappeared for several reasons. The Supreme Court granted First Amendment protection to much of what previously had been considered illegal obscene material, largely leaving only child pornography without constitutional protection. After the Supreme Court held that Americans have a constitutional right to access contraception, Congress removed the contraception ban from the Comstock Act. And after Roe v. Wade granted a constitutional right to abortion, the abortion provisions of the Act were not enforced…or at least they weren’t enforced until Roe was overturned.

Abortion opponents have maintained that we don’t need a new law against abortion because we have the Comstock Act.  Two years ago, then-Senator JD Vance joined other conservatives in demanding that the Comstock Act be applied to abortion-related materials, including abortion pills. Project 2025, disavowed by Trump on the campaign trial but implemented by him as president, advocates use of the Comstock Act to ban abortion pills.

On its face, the Comstock Act would ban abortion pills as well as any instrumentality used in an abortion nationwide. However, past interpretations of the law held that the Comstock Act could not interfere with the state regulation of medical practice. If those precedents are followed (but who trusts the courts today?) and abortion is legal in a state, the Comstock Act would not prohibit abortion pills there. The Act could only be applied to the provision of abortion pills being sent to places where they are illegal. In other words, precisely to Dr. Carpenter’s situation.

I am not saying that this is going to happen, but if Carpenter were charged under the Comstock Act, a federal law, the New York Telemedicine Shield Law would not protect her. FBI or other federal law enforcement agents (assuming that there will be any who are not tied up seeking retribution for actions Trump has considered hostile) can arrest the doctor. No interstate extradition would be required to put her on trial, and she would be tried in federal court.