The New Federal Lawsuit Against Abortion Shield Laws

Earlier this month a Galveston man filed a federal lawsuit against a California doctor, alleging that he provided abortion medication to a former partner. But this lawsuit was filed in federal court (in the Southern District of Texas), marking a new legal ground against shield laws, which many blue states have enacted to protect abortion providers. 

The attorney for the man suing the California doctor is Jonathan Mitchell, the former Texas solicitor general who was the architect of the state’s near-total abortion ban Senate Bill 8. Mitchell previously represented another man from Galveston in a wrongful death lawsuit against three women who he alleged helped provide abortion medication to the plaintiff’s ex-wife. That lawsuit, which was not federal, was dropped before a trial.

In this newest federal lawsuit, Mitchell is once again alleging a “wrongful death” and is seeking upwards of $75,000. Additionally, the federal lawsuit claims that the California doctor who provided the abortion medication violated The Comstock Act, an obscenity law that dates back to 1873.

While portions of the Comstock Act, which banned the mailing and receiving of “obscene, lewd, or lascivious” writings and materials, have been nullified through various Supreme Court rulings, it is still technically on the books as a kind of zombie legislation. Mitchell even told the New York Times in 2024 that it could play a key role in further restrictions on abortion, particularly abortion pills.

For Dr. Chelsea Daniels, an OB/GYN and abortion provider who is a member of the Committee to Protect Health Care, this latest lawsuit from Mitchell has been “eye-opening.” In an interview with the Texas Signal, she noted that it shows “the lengths that these bad actors will go to stop women from accessing basic healthcare.” 

Dr. Daniels, who is currently based in Florida, is also a member of the Committee’s Reproductive Freedom Taskforce. As a physician, she recognizes that medication abortion (which was approved by the FDA in 2000) is extremely safe. “Getting an abortion is a normal healthcare decision that should not be legislated upon,” she told Signal. 

Many anti-abortion opponents have been targeting mifepristone, one of two drugs used in a medication abortion. Last year the Supreme Court tossed a lawsuit filed in Texas that was seeking to revoke the FDA authorization of mifepristone. That same federal judge in Texas has allowed another challenge to mifepristone from three Republican-led states that is ongoing.

This newest federal lawsuit comes on the heels of attempts by Texas Attorney General Ken Paxton to fine and prosecute a New York doctor who allegedly sent medication abortion to a woman in Collin County last year. A county clerk with Ulster County, where the New York doctor is located, has refused to enforce a judgment that was issued by a district judge in Collin County. On Monday July 28, Paxton’s office announced he was filing a legal petition against the county clerk to force the New York doctor to pay the Texas-issued fine.   

While questions about whether shield laws in states like New York or California will likely wind up in front of the Supreme Court, Texas is not done potentially further restricting abortion. One of the additional agenda items added by Governor Abbott in the special session is more legislation against abortion.