Impact on Enforcement
Navigating Heightened Civil and Criminal Liability Risks in the Evolving Post-Dobbs Enforcement Landscape
In the wake of the Dobbs decision, the transfer of authority to regulate abortion to individual states has opened up a growing host of legal challenges for employers, health care providers, and individuals. Matters are further complicated for organizations operating across state lines. Identifying possible sources of liability and developing strategies to respond quickly in the event of a lawsuit or an investigation are imperative.
Understanding the New Enforcement Landscape
Companies of all sizes in a variety of industries throughout the United States are grappling with how to manage enforcement risk in a post-Dobbs world. As a result of rapid changes in laws governing abortion access, there has been a sharp increase in enforcement activity as state prosecutors and private plaintiffs bring lawsuits under various states’ laws.
There is a range of possible warning signs that your company is under civil or criminal investigation; some signs are obvious, while others are not. Remember these tips:
- There’s always a chance that a civil investigation, depending on what it uncovers, can turn criminal.
- Evidence obtained in civil investigations can readily be shared with criminal agents and prosecutors.
- It's crucial to proceed with utmost caution when faced with a scenario indicating potential government enforcement.
“...receipt of such a [target] letter is a strong indication that the company may also be under investigation.”
Investigation Warning Signs to Look Out For
Being vigilant for the warning signs of an investigation is critical. In-house counsel, corporate executives, and health care practitioners concerned about the enforcement risks arising from the Dobbs decision may wish to consider two important threshold questions when faced with a subpoena, request for records, or government inquiry: (1) Is the company under criminal investigation, and if so, (2) what should we do?
Warning Signs:
- Subpoena
- Search Warrant
- Target Letter
Responding to an Enforcement Action
Companies in any industry, not just health care, can be subject to government investigations, especially those in highly regulated industries. Health care, finance, technology, and other publicly traded companies are all fair game when it comes to government inquiries and potential enforcement, as are their employees and executives.
If you receive a subpoena, request for records, or government inquiry, speed is of the essence. In the context of Dobbs-related enforcement, government subpoenas may contain sensitive requests for your employees’ or business partners’ medical records, employment records, location data, or company communications such as emails and text messages. Receipt of government inquiries in this area presents complex legal issues, which we do not recommend navigating alone. Epstein Becker Green has an experienced team of white-collar defense lawyers who can assist you with state enforcement issues and government inquiries. Taking the right steps early can help protect your organization, your employees, and your executives.
Shaping Enforcement Through Litigation
In April 2023, rulings in the case Alliance for Hippocratic Medicine v. FDA called into question the U.S. Food and Drug Administration’s (FDA’s) scientific review process to approve new drug applications. While the U.S. Supreme Court acted to preserve access to the drug mifepristone while the case continues (it has since been returned to the U.S. district court by the U.S. Court of Appeals for the Fifth Circuit), the future of mifepristone—and the FDA’s authority to approve new drugs—will continue to be debated as this case proceeds.
To read more about the case and what it could mean for you and your organization, click here.
“We expect these investigations and prosecutions to be unprecedented...”
