Impact on Health Care Providers
Weighing the Risks of Questions with Unknown Answers
One thing is for certain about the 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
Frustratingly, 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.
Immediate Effects 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 immediately and drastically by the Dobbs decision. However, there are several actions that you may want to take now to help mitigate your risk. For instance:
- put a plan in place to address abortion restrictions affecting your operations and the abortion-related questions your patients will ask,
- pinpoint your operations and services impacted by the Dobbs decision,
- find out how the states in which you operate define and regulate abortion practices,
- update your policies and procedures to ensure that they comply with relevant states’ abortion laws,
- track legislative developments affecting reproductive health services, and
- expect that the services you provide in ban states relating to family planning and pre- and post-abortion procedures—as well as miscarriages—will be subject to scrutiny by state regulators and licensing boards.
What does "aids and abets" mean?
Liability, licensure, scope of practice, and travel issues are raising questions
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?
0 states have banned travel for abortion so far
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
While legislation is being floated in some ban states to prohibit out-of-state travel for abortions, no state has actually banned that travel so far. Nevertheless, could a ban state legally penalize a pregnant patient (and their provider) for traveling to a non-ban state for an abortion? At present, it’s unclear whether banning out-of-state travel for an abortion would violate the U.S.
Constitution. 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 may enact 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.
The Dobbs decision will 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.