Impact on Health Care Providers
Weighing the Risks of Questions with Unknown Answers
One thing is certain about the U.S. Supreme Court’s decision in Dobbs v. Jackson’s Women’s Health Organization to leave abortion regulation to the U.S. states: it has created tremendous uncertainty in the health care sector.
“A single state may even have abortion laws that contradict each other.”
New Challenges and Confusion for Health Care Providers
Laws vary from state to state on many abortion-related issues, including abortion preconditions, restrictions, exceptions, waiting periods, and penalties, as well as who may perform an abortion and where. A single state may even have abortion laws that contradict each other. This patchwork of competing state laws is causing compliance challenges and confusion for health care providers involved in the provision of women’s health care or family planning services, whether in a state where abortion services are banned or severely limited (“ban state”) or in a non-ban state experiencing an influx of patients seeking care.
For health care providers and their patients, the Dobbs decision has triggered many questions—and while some answers may be clear, most fall within a gray area.
Impact on Providers in Ban States
If you’re a hospital, health system, telemedicine provider, or clinician in a ban state, your ability to deliver women’s health care or family planning services was altered drastically by the Dobbs decision. As a provider, you should consider doing the following:
- Creating and regularly updating plans to address abortion restrictions affecting your operations and the abortion-related questions your patients ask
- Regularly reviewing and updating your policies and procedures to ensure that they comply with relevant states’ evolving abortion laws
- Closely tracking legislative developments affecting reproductive health services
- Preparing for ongoing scrutiny of your family planning services and miscarriage and abortion procedures by state enforcement authorities, regulators, and licensing boards
Click here to download our checklist of post-Roe considerations for health care providers
What does "aids and abets" mean?
Liability, licensure, scope of practice, and travel issues continue to raise questions
Gray Areas
Because the effects of the Dobbs opinion have resulted in more questions than answers, health care providers must tread carefully.
Numerous abortion laws in ban states, including Texas, create liability for anyone who aids and abets an abortion, but what does “aids and abets” mean? Does counseling on medication abortion or referring a patient to an abortion provider in a non-ban state qualify as aiding and abetting?
And what will the future hold for fertility treatments in states that define a fetus as a person? While total bans on fertility treatments and in vitro fertilization seem unlikely, vague wording in a state’s law could lead to unintended consequences for those performing such procedures.
In addition, some ban states provide an exception to the prohibition on abortion when a health care provider determines that the mother’s life is in danger. But what is the threshold for that standard, and what type of documentation will the provider need to show that the mother’s life was in danger, thus justifying the abortion?
These are just a few of the questions that need to be assessed state by state.
What documentation is needed?
Multistate Providers
If you are a health care provider who practices, whether in-person or through telemedicine, in multiple states, consider what effect abortion procedures in a non-ban state may have on your license in a ban state.
Could the ban state’s licensing board take disciplinary action against you for performing the abortion in the non-ban state? And if that disciplinary action occurs, could the non-ban state’s licensing board, under collateral state licensing laws, begin disciplinary procedures against you because the ban state’s licensing board disciplined you?
If you are a multistate provider of telemedicine services, consider establishing processes for implementing prohibitions and restrictions in each state in which you provide care to determine which abortion-related treatments you may offer and under what circumstances. In addition, consider the restrictions associated with the timing of abortion services, the application of exceptions, and how these factors will be confirmed and documented in the telemedicine context.
Also, identify the specific diagnostic tests, counseling, and education requirements established by each state before prescribing medication abortion drugs to residents of states with restrictions, as well as any scope-of-practice restrictions specific to prescribing such drugs in states with restrictions.
Traveling for an Abortion
Since Dobbs, legislation prohibiting out-of-state travel for abortions has been floated in some ban states, and Idaho recently passed a law explicitly restricting some out-of-state travel for abortions, a move that other ban states may copy. While legal scholars argue the constitutionality of such travel bans, providers and patients must consider the associated penalties in those states.
The U.S. Attorney General, Merrick Garland, has publicly stated that the U.S. Department of Justice opposes state-imposed travel restrictions on abortions. And some non-ban states are considering laws shielding health care providers and patients who travel to those states for an abortion from liability. The validity of state-imposed travel restrictions on abortions is an issue that will likely play out in the courts.
Transactional Considerations
The Dobbs decision will continue to have an impact on corporate transactions, too. Buyers will likely be more cautious with a target company that provides reproductive health or telemedicine services that could raise red flags with regulators. During the due diligence review, a buyer will likely want to consider, among numerous other issues, how the evolving laws regulating abortions in the states that the target operates in will affect representations, warranties, and compliance with covenants in the transaction documents, and whether a specific indemnification from the seller will be needed.
