Posted on by rjonakait

Indicted for an Abortion Pill

“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.

Posted on by rjonakait

Confessions of a Sometime Public Defender–Bail Edition

When he committed suicide, Jeffrey Epstein was being held in jail because he had been denied bail. Headlines have also recently proclaimed that R. Kelly was denied bail, as they did earlier for Paul Manafort. Bail decisions also often make it into at least the local news when a person out of jail on bail is arrested for a heinous crime. But bail has also become newsworthy because California, New Jersey, New York, and other states have reformed their bail laws, and “progressive” prosecuting attorneys have adopted policies of not asking for bail for those arrested for various minor crimes. Furthermore, activists decrying this country’s mass incarceration have turned a spotlight on this aspect of our criminal justice by emphasizing the high numbers of people in jail simply because they cannot post bail. No one has the precise number jailed for the lack of the needed money, but it may be as high 400,000—the equivalent of jailing eighty percent of Wyoming’s population.

So bail is in the news, but our bail system can be easily misunderstood. Part of the reason for that is that we do not have a single unified bail system. Instead, each state and the federal government has its own laws and methods for the setting of bail. The systems, however, have common characteristics.

At least legally, bail is not a punishment. It is set on someone who has been arrested and charged with a crime, not someone convicted of a crime. Only when someone is convicted can punishment follow.  Instead, the original purpose of bail was to guarantee that the accused would be amenable to court processes and make all required court appearances. Bail was to make sure that a person charged with a crime did not flee and appeared for trial.

The purposes of bail were expanded with the federal Bail Reform Act of 1984 which allowed the detention of arrestees because they are a danger to the community, so called preventive detention. However, this was a limited change; it only applied to federal courts, and state criminal cases dwarf the number in federal court. Moreover, most states have not adopted preventive detention. Bail is overwhelmingly set only to prevent the flight of arrestees.

We lack one bail system not only because each jurisdiction has its own bail laws, but also because even localities within a jurisdiction have different cultures for bail-setting. Thus, the amount of bail set and the overall rates of release on bail vary significantly from one city or county to others in the same state. And there is another factor that varies significantly around the country—the quality of the detention facility for those who can’t make bail, which, on the whole, runs the gamut from bad to abysmal.

I can’t, therefore, describe our country’s bail system. I can only give impressions of one system when I practiced law, New York City. That at least might yield a better general understanding of bail in “ordinary” criminal cases.

The sole purpose for bail in New York is to have arrestees show up for required court appearances. Frequently, the bail-setting judge concluded that an accused would return to court without any conditions imposed. In that case, the arrestee was just released, or as said in New York and many other places, “released on recognizance” or ROR. Other times, however, the court concluded that bail was needed.

The basic form of bail was a monetary requirement. Let’s say that a $1,000 bail was set. That meant that if $1,000 in cash was posted with the court, the defendant would be released from jail. The defendant would have the obligation to make all scheduled appearances. If the defendant made the required court dates, at the end of the case no matter what the result—acquittal, dismissal, conviction, prison or no prison—the defendant or whoever posted the money would get $1,000 back minus a service fee. If, however, the accused did not make the required appearances, the state would keep the $1,000, and the defendant would have committed the crime of bail jumping, which carried additional penalties in addition to those for the originally charged crime.

Although judges sometimes required that only cash could be posted, most often the monetary condition was “cash or bond.” In my example, that meant that $1,000 cash or a bond could be deposited with the court clerk.  Someone on behalf of the defendant would purchase a bond from a bail bondsman whose offices dotted the streets around the courts. The law regulated the premium the bondsman could charge, but the bondsmen could decide what collateral they would need to issue the bond. That might be anything of value—jewelry, car titles, bankbooks, property deeds. If the defendant made the court appearances, the collateral went back to whoever gave it to the bondsman, but the premium was an irrevocable fee that the bondsman kept for his service in writing the bond. If the defendant jumped bail, the bond company kept the collateral and the fee, but was supposed to pay the court $1,000. And the bond company had rights to bring the defendant back to court, and, thus, all those movies and TV shows about bounty hunters employed by the bond companies.

In New York, I saw few examples of bond companies bringing bail jumpers back to court. This would indicate that the companies lost money in these situations unless the collateral was worth more than the bond, but that is true only if the bond company paid the $1,000. I never saw a report on how often that happened. Often the companies would in effect plea bargain and get the $1,000 figure lowered. It saved the state the expense of litigating to collect the fee, but it also meant that the bond company was making money and doing little to insure a defendant’s presence in court.

Through history there have been many examples of corruption as a result of the bail bond business. Not much public attention has been paid to the collection of forfeited bonds. The bribery incentive to have state representatives accept less than the forfeited amount can become large.

The bond system also has another problem. It in effect outsources the decision as to who will be released to the bondsman. A person gets released if the bond company decides to write the bond, and that decision solely rests with the company. If the bondsman finds the collateral sufficient, the person gets released; otherwise not. In this way, it is really the bondsman who determines who gets out of detention, not the court. For these and other reasons, many states have outlawed the use of commercial bail bonds.

Whatever the bail system, the setting of bail is a crucial decision for a defendant.

(continued September 13)