Louisiana’s attempt to extradite a New York-based doctor, Margaret Carpenter, for prescribing abortion pills to a minor patient in Louisiana is still facing an uncertain future. 

Governor Hochul cited the state’s Shield Law — meant to protect doctors who prescribe abortion pills out of state – as she firmly rejected the warrant, saying she would not sign the warrant “not now, not ever,” which has opened the door to questions about whether Louisiana might seek to force compliance with the extradition request. 

The extradition question could set up a novel legal battle. Article IV Section 2 of the Constitution states that anyone who “shall flee from Justice and be found in another state” shall be “delivered up” to the state that filed the extradition request.  However, because Ms. Carpenter was not in Louisiana when she prescribed the pills, there are questions about whether she qualifies as a fugitive. New York’s law states that it would extradite a defendant if the “demanding” state alleges that the individual committed a crime and then “fled from that state,” which Louisiana officials have not alleged.

Since the case against the doctor involves criminal charges, it is unlikely that it can proceed without her in state. Louisiana’s attorney general, Liz Murril, implied in a statement that other states would honor the request. 

New York’s refusal to hand over the doctor has led to questions about whether Louisiana officials will try to obtain a writ of mandamus to force officials to comply with their extradition request.

There have been some previous debates about whether courts could force states to hand over a fugitive that wound up before the Supreme Court, such as Kentucky v. Dennison. In 1860, Kentucky officials demanded that Ohio, a free state, return an enslaved person. The governor of Ohio at the time, William Dennison, refused to honor the request, and Kentucky went to the Supreme Court to seek a writ of mandamus.

The court ruled that states are constitutionally required to hand over fugitives, however, the justices said that the courts did not have the authority to issue a writ of mandamus to force states to comply with extradition requests. 

That decision stood for more than 100 years until the case Puerto Rico v. Branstad in 1987. A man from Iowa was accused of murder and attempted murder in Puerto Rico, and after he posted bail, he fled to Iowa. Puerto Rico went to court to force Iowa to return the man. And the Supreme Court overturned Dennison, calling it “the product of another age” and “fundamentally incompatible with more than a century of constitutional development.”

And there have been some instances of states refusing to honor extradition requests even after the court overturned Dennison. In 1997, New Mexico refused to honor an extradition request for a parolee, Manuel Ortiz, who fled from Ohio after being informed officials planned to revoke his parole status. 

Ortiz sought habeas corpus relief in New Mexico, and the state’s Supreme Court found that he was fleeing from “injustice,” and under the state’s constitution, it did not have to extradite him. However, the Supreme Court found that New Mexico “went beyond the permissible inquiry in an extradition case.”

“In case after case, we have held that claims relating to what actually happened in the demanding State, the law of the demanding State, and what may be expected to happen in the demanding State when the fugitive returns, are issues that must be tried in the courts of that State, and not in those of the asylum State,” the court said. 

Louisiana officials did not provide updates on whether they plan to seek a writ of mandamus to force New York to hand over Ms. Carpenter. If the state did try to get the courts involved to force compliance with its extradition request, it would likely set up a new legal battle about who is considered a fugitive and subject to extradition. 

While the issue of whether Louisiana can seek a writ of mandamus in this case plays out, the mother, who prosecutors allege forced her daughter to take the abortion medication, pleaded not guilty last week.

In Louisiana, It has been illegal to provide an abortion or to provide abortion medications since 2022. However, law enforcement alleges that the mother of the minor who took the abortion pills coerced her daughter into doing so. The Baton Rouge district attorney, Tony Clayton, said the mother told her daughter “she had to take the pill or else, and the child took the pill.”

Prosecutors also say the child was hospitalized after she suffered a medical emergency due to the pill. 

A law professor at the University of California, Mary Ziegler, told Law360, “I think what you’re going to see is New York saying, ‘Dr. Carpenter never was in Louisiana at the time the abortion took place, maybe never was at all, and therefore, she’s not a fugitive within the meaning of the Extradition Clause.”

Ms. Carpenter is also facing a civil lawsuit from Texas for allegedly mailing abortion pills to that state. Either of those two cases could set up a legal challenge of New York’s Shield Law that could end up before the Supreme Court. And Louisiana’s could potentially lead to a change of understanding in how extradition warrants are issued and handled.

As the case appears to be in limbo, doctors do not seem to be hesitant about prescribing abortion pills. NPR notes that eight states have laws protecting doctors from extradition if they prescribe abortion medication via telemedicine, and 14 have various shield laws or executive orders that do not provide protections for telemedicine. 

While the doctors NPR spoke to signaled they do not intend to stop mailing abortion medication because of Louisiana’s indictment of Ms. Carpenter, a human rights lawyer, Julie Kay, told the outlet that some doctors are limiting their travel to certain states due to concerns that officials in states without shield laws might honor extradition requests.