Less than 3 months after the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization, which overturned Roe v. Wade, approximately one in three Americans live in a state that has banned abortion under most circumstances. More than a dozen states have enacted new abortion restrictions or revived old ones. The result is a fast-changing and often uncertain legal landscape for pregnant people who seek to terminate their pregnancy and healthcare providers and community organizations that support access to abortion services across state lines.
This uncertainty, combined with the stiff penalties under states’ abortion restrictions, is creating a chilling effect on legal healthcare conduct — deterring qualified providers from providing permissible services or connecting patients to resources. There have already been reported incidents of providers refusing to provide miscarriage care out of fear of legal action, even though miscarriage care is legal.
Although the Supreme Court characterized the Dobbs decision as returning the issue of abortion to states, the aggressive abortion restrictions in “Ban States” also have far-reaching implications for “Access States” — where pre-viability abortions remain legal — since the ability of providers in “Access States” to serve patients traveling from “Ban States” is dependent on how the laws in each state intersect.
The Dobbs decision has therefore thrust all reproductive health providers into a chaotic legal landscape and puts the burden on them to navigate complex federal, state, and interstate laws — in some cases deterring them from providing care.
State Abortion Restrictions Come in Many Shapes and Sizes
There is immense variability in state laws that restrict access to abortion, and sometimes multiple overlapping abortion laws exist within a single state. State laws vary along dimensions, such as:
- Which abortions are prohibited. Some states have banned abortions outright, while others prohibit abortions based on the developmental stage of the fetus. States may allow exceptions for abortions to save the pregnant person’s life or prevent serious harm, for pregnancies resulting from rape or incest, or where the fetus has an anomaly inconsistent with life.
- Aiding and abetting. In addition to prohibiting the abortion itself, certain state laws create legal risk for a person who “aids or abets” the performance of an illegal abortion, such as by assisting the pregnant person in accessing an illegal abortion or paying for abortion services.
- Nature of liability and enforcement. States may establish criminal prohibitions that carry the threat of prison time, civil laws that carry monetary penalties (including “bounty hunter” laws that allow private citizens to sue abortion providers), and/or professional disciplinary standards that could result in the loss of a license to practice medicine or another regulated healthcare profession.
A Legal Minefield: Complexity Compounded by Uncertainty
Beyond the complexity created by the sheer number of abortion bans, providers and other stakeholders must grapple with the uncertainty resulting from broadly-phrased, new laws that lack an established track record of enforcement practices and judicial interpretations. It’s unclear how these laws will be applied by state officials and interpreted by the courts, including with respect to important issues such as:
- Liability across state lines. Although a state could theoretically pass a law that expressly criminalizes seeking an abortion outside state lines, current abortion bans are typically either silent on this issue or expressly limited to in-state conduct. It remains to be seen whether and how Ban States may seek to target out-of-state abortions that were legal where performed and whether courts will permit such actions to proceed.
- Interaction with federal law. The Biden administration has attempted to limit the impact of state abortion restrictions by, for example, directing providers to perform “stabilizing” abortions in emergency scenarios (this guidance has been blocked in Texas but remains in effect in other states), advising pharmacies of their obligations under federal nondiscrimination laws, and reminding states of the FDA’s sole authority to assess the safety and efficacy of medications (including medication abortion).
- Interaction with Access State laws. Some states (e.g., New York and California) protect the provision of abortion services within state lines. These new laws — sometimes referred to as “haven laws” or “shield laws” — may include protections against criminal extraditions, civil discovery orders, or professional disciplinary action associated with out-of-state proceedings.
For the many scenarios healthcare providers may confront, the level of risk will depend on the specific laws of the patient’s home state and the provider’s state, as well as the circumstances of the clinical encounter (see here for an overview of higher- and lower-risk scenarios).
For instance, it may be permissible for a provider in a Ban State to provide pre-and post-abortion clinical services (such as an ultrasound and counseling about options for accessing abortion, and care for abortion-related complications) to a patient in the Ban State who plans to travel out-of-state for a legal abortion. For an Access State provider serving a patient who resides in a Ban State, the Ban State’s laws likely apply to a telehealth encounter while the patient is physically located in the Ban State but may not apply if the patient travels to the Access State for in-person services.
The Upshot of Uncertainty: Reduced Access and Increased Costs
Ban States have created ripple effects well beyond banning a specific set of abortion procedures.
In Ban States, providers who are unsure about the scope of new abortion restrictions may be hesitant to provide medically necessary care that remains legal, such as filling prescriptions for emergency contraceptives or providing services for miscarriage management.
In Access States, meanwhile, providers are seeing a rising number of out-of-state pregnant patients, often without the ability to pay for the full cost of those services. This sudden increase in patient volume can result in Access State residents experiencing increased wait times or the need to travel longer distances for reproductive health services.
In both Ban States and Access States, reproductive healthcare providers are struggling to balance the goals of minimizing their legal risks while preserving patient access to care. Providers are incurring additional costs as they consult legal experts, draft policies and procedures, and train staff on strategies to minimize legal risks. Every dollar spent avoiding liability under state abortion restrictions is a dollar that could otherwise have been spent on enhancing healthcare access and quality.
We likely won’t be able to measure the true impact of the Dobbs decision on the availability of high-quality reproductive healthcare services (not just abortion services) for years to come, but we can feel the chill already.
Julian Polaris, JD, is an associate with Manatt Health. He counsels clients on a wide range of matters related to healthcare coverage, reimbursement, and provider licensure, with particular experience in legal and policy issues connected with the Medicaid program. Naomi Newman, MBA, MPH, is a managing director with Manatt Health focused on provider strategy, digital innovation, and health equity.
Source: MedicalNewsToday.com
