Now that Dobbs has become the law, what are the practical ramifications of this landmark case for healthcare in the United States? We will explore some of the initial practical considerations immediately following the ruling, and we will update as guidance and legislation warrants.
There is little doubt that many health care providers across the country are contemplating the profound impact that Dobbs will have on their ability to provide reproductive health care services to their patients. With the nullification of a woman's federal constitutional right to an abortion, health care providers will not only need to navigate the state laws affecting a woman's reproductive health care rights in the states in which they practice, but they will also have to be cognizant of whether the state law of a patient's origin limits their ability to provide reproductive health care to such patients. Although, the jurisdictional reach of such laws is highly questionable, it is yet to be seen how aggressive some states will become.
Not surprisingly, upon release of the Dobbs decision, President Biden, the United States Attorney General (Merrick Garland), the American Hospital Association, the American Medical Association, the Association of American Medical Colleges, the Centers for Medicare and Medicaid Services, and the American College of Surgeons, to name a few, have issued strong statements denouncing the Dobbs decision. The consensus from these leaders and health care organizations is that Dobbs wrongly interferes with a woman's right to comprehensive reproductive health care, and will disproportionately impact the economically marginalized populations who already have challenges accessing health care. While reproductive rights advocates seem fully committed and energized to finding a path to preserve a woman's right to an abortion, health care providers now face a quagmire of legal issues. The following sets forth some preliminary issues for health care providers, pharmacies and medical device manufacturers to consider during this volatile period in the law:
- Check with your counsel as to whether there are any state laws that limit or completely restrict your ability to advise or provide any reproductive health care services. If you are a pharmacy or medical device manufacturer that mails Federal Drug Administration (FDA) approved products into a state with restrictive reproductive laws, the federal Interstate Commerce Clause may pre-empt the applicability of such restrictive state laws. According to Merrick Garland, the United States Attorney General, "[s]tates may not ban Mifepristone based on disagreement with the FDA's expert judgment about its safety and efficacy." However, such pronouncements do not mean that makers of hormonal medications and other medications that function as emergency contraception or as abortifacients will not be targets of civil or criminal litigation in certain states.
- Determine whether your patient's health benefits plan covers the particular reproductive health care services that the patient needs. As discussed herein, while self-funded plans, with limited exceptions, are unlikely to be subject to state laws banning abortion or other reproductive services, health insurance plans are likely to be subject to the laws of the state in which they do business, whether the state bans abortion or requires insurance to cover the cost of abortion, as Maryland has done. Currently, 16 states cover abortion procedures under their Medicaid state plans. At this time, it is unknown whether Centers for Medicare & Medicaid Services (a federal agency that administers the Medicare program and works in partnership with state governments to administer Medicaid, the Children's Health Insurance Program and health insurance portability standards) will require all states that participate in Medicaid to cover abortion procedures, including emergency contraception or abortifacients.
- It is also currently unclear whether the Secretary of Health and Human Services will promulgate new rules under the Emergency Medical Treatment and Active Labor Act for hospitals participating in Medicare with respect to the provision of certain emergency reproductive services such as when a woman has been raped, has experienced a miscarriage or is suffering from an ectopic pregnancy or septic uterus. Please note that many of the medications that are used to induce an abortion are also prescribed for miscarriages.
- Check your state privacy laws as some states, such as Connecticut, have or will enact laws that prohibit (with limited exceptions, e.g., reporting child abuse) a "Covered Entity" under the Health Insurance Portability and Accountability Act (HIPAA) from disclosing any information regarding the provision of reproductive health services without the patient's or their legally authorized representative's specific written authorization. Therefore, while a disclosure may be permissible under HIPAA, a state law that further restricts the disclosure of reproductive health information must be adhered to with respect to the protection of the patient's privacy. In addition, some states will bar authorities from cooperating with an out-of-state action (e.g., the issuance of a subpoena) relating to reproductive health services in certain circumstances. Please also note that the enactment of state laws relating to reproductive health services may necessitate an amendment to providers' Notice of Privacy Practices under HIPAA.
- Some states may also enact laws that shield health care providers and patients who travel to other states to seek abortions in their state from being held liable in the state in which they provided or received the reproductive health services, further including the right to recover damages and costs relating to such action. For example, in Connecticut, health care providers cannot be extradited to other states in connection with reproductive health services claims.
As new guidance is released, we will update our Dobbs Decision Resource Center page.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.