Abortion Questions Swirl Over Health Attys In Post-Roe World

(June 24, 2022, 11:09 PM EDT) -- Lawyers for the health care industry's myriad participants — hospitals, pharmacies, telemedicine platforms, investors and more — are fielding countless queries about ethical duties to patients and a minefield of legal risks after the U.S. Supreme Court erased the constitutional right to abortion and allowed states to criminalize the procedure.

The high court's conservative wing on Friday ruled 6-3 to uphold Mississippi's ban on most abortions after 15 weeks of pregnancy, about two months earlier than allowed under longstanding precedent. More importantly, the justices also ruled 5-4 to discard that landmark precedent — established in Roe v. Wade and Planned Parenthood v. Casey — guaranteeing access to abortion.

The upshot is that states now have something approaching carte blanche to outlaw abortion entirely and back up that prohibition with the threat of fines and prison time. Those threats are already on the books in some states with "trigger laws" that were ready to take effect if and when the Supreme Court scuppered Roe and Casey.

Here, attorneys tell Law360 about the weighty questions they're hearing, the answers they've figured out, and the many uncertainties that remain.

'A Sea Change'

The big-picture message from health law experts was that Friday's decision in Dobbs v. Jackson Women's Health Organization marks an inflection point for the American health care system's businesses, individual practitioners and female patients.

Even prior to Friday, in a nation of 50 states and 50 approaches to overseeing abortion, offering abortion services in a compliant manner meant traversing an obstacle course of regulations. But that regulatory environment pales in comparison to the legal landscape that will emerge in the post-Roe world.

"The field against whom [abortion restrictions] can be enforced becomes so much broader," McDermott Will & Emery LLP partner David Quinn Gacioch told Law360. "It's such a sea change."

The potential for wide-ranging enforcement is a reflection of the nation's multilayered system for patient care. Health insurance companies supply coverage and hire agents to administer benefits. Those benefits often cover telehealth services. Doctors use telehealth platforms to consult pregnant women, and they write prescriptions for abortion-inducing medications. Pharmacies dispense the pills, which are made by drug manufacturers and distributed by wholesalers.

Sarah Cummings Stewart, a Reed Smith LLP partner based in Texas, told Law360 on Friday that inquiries about the Dobbs decision are pouring in from "across the whole lifecycle of the life sciences and health care industry."

"We're getting pretty much every question you can imagine," Stewart said.

The broad range of questions makes sense because impending state bans on abortion often "are written very, very broadly," sometimes covering the act of "aiding or abetting" or otherwise facilitating the performance of an abortion, McDermott partner Stacey L. Callaghan noted.

The takeaway is that companies with seemingly tenuous ties to tangible health care services — such as investors, employee benefit plans and third-party vendors — could soon find themselves in legal hot water if they assist even indirectly with access to abortion.

"Any organization whose operations touch in any way on family planning services … should be thinking now about how they might be impacted by the varied landscape," Callaghan said.

'Short-Term Scrambling,' 'Long-Term Battles'

The Supreme Court on Friday dropped 200-plus pages of opinions and appendices in the Dobbs case, testing the turnaround-time talents of even the quickest counsel.

"It's a long opinion, and we're all still parsing it," and there are still "unanswered questions" about all the implications, Stewart said.

Several other experts had similar takes, telling Law360 that attorneys and their clients will focus first on getting their arms around the new world for abortion rights, and will then turn their attention to making that world as hospitable as possible.

"There will be short-term scrambling to try to figure out what the law is," Sonia M. Suter, a reproductive rights scholar at George Washington University Law School, said in an interview. "And then, I think there's going to be a lot of long-term legal battles about how far states can go" with anti-abortion laws.

Much of the short-term scrambling​ will likely focus on trigger laws. Attorneys at the Center for Reproductive Rights on Friday said there were still questions about the effective dates of those laws in many states, and they indicated that lawsuits are imminent.

"We do expect that there will be challenges filed to trigger bans in a number of states," Julie Rikelman, litigation director at the center, said at a news briefing. "But everything is being analyzed, and all of the options are being considered on an ongoing basis."

'Big Battleground' Looms Around Travel Limits

Abortion access already varies widely from state to state, and that contrast is virtually certain to become much more stark in the coming weeks and months.

In an amicus brief in the Dobbs case before Friday's decision, a group of economists observed that roughly two-dozen states might ban abortion if Roe were overruled. In that scenario, they wrote, "travel distances to the nearest abortion provider would increase for 26 million women of childbearing age."

"The increases are drastic: In counties where travel distances are predicted to change, the average travel distance would increase from 35 miles to 279 miles. Seventy percent of women in these counties would be more than 200 miles from their nearest provider," the economists wrote.

Because women are nonetheless expected to make long trips to states where abortion remains available, some state lawmakers have floated plans to punish individuals who help residents travel across state lines to end their pregnancies. Those plans raise major questions about whether states have such power over their inhabitants' travel, experts say.

McDermott's Gacioch called the travel debate "a big battleground," and he told Law360 that litigation is already in the works to push back on travel restrictions.

"I don't want to tip our hand … but suffice to say, there will be plenty of arguments on whether a restrictive state can prevent its residents from obtaining services from folks in other states, even if there are services that that state has outlawed within its own borders," he said.

In a statement on Friday, Attorney General Merrick Garland hinted at U.S. Department of Justice intervention, noting that "the Constitution continues to restrict states' authority to ban reproductive services provided outside their borders."

"Under bedrock constitutional principles, women who reside in states that have banned access to comprehensive reproductive care must remain free to seek that care in states where it is legal," Garland wrote.

'Ethical Practice of Medicine, or Obeying the Law'

In an illustration of the legal risks for providers, Texas Attorney General Ken Paxton on Friday issued an advisory noting that a state abortion ban will soon take effect. Paxton vowed to "strictly enforce" the ban's potential penalties of $100,000, and promised to "assist any local prosecutor who pursues criminal charges" under the ban.

Mary Faith Marshall, a professor of biomedical ethics at the University of Virginia School of Medicine, told Law360 on Friday that the legal specter could harm prenatal care by leading expecting mothers to keep their pregnancies secret, even if state officials disavow enforcement against individual patients. She added that there will be questions about how district attorneys and state attorneys general investigate cases, such as miscarriages.

"There's going to be increased surveillance; there are going to be more arrests and prosecutions," Marshall said.

The risk of prosecution has raised ethical concerns. In an amicus brief, the American Medical Association told the Supreme Court that severe abortion bans "threaten the medical profession's integrity," and could force physicians "to choose between the ethical practice of medicine or obeying the law."

Breaking the law could cost a physician or company their medical license, and especially for large health care companies, a loss of licensure could occur in one state and set in motion a snowball effect.

"If a state takes action against a professional's license, that could have sweeping consequences, because that could then trigger a number of other state actions," Callaghan said.

Erin Morrow Hawley, senior appellate counsel at Alliance Defending Freedom, an anti-abortion legal group, told Law360 on Friday that some fears are overblown.

"As an initial matter, I believe that criminal liability against patients and women would be off the table. I think the states will move to protect women," Hawley said.

Beyond enforcement, Mississippi Attorney General Lynn Fitch said in a Friday statement that states must "renew our commitment to weaving a safety net that helps women."

"This is about more than the fundamentals of prenatal vitamins and diapers; it is about helping to connect them to opportunities for education and job training to support their families," Fitch said.

But not everyone is feeling sanguine. Although much could depend on whether prosecutors aggressively enforce bans, it's possible that a small amount of enforcement will go a long way.

"All you need is to have one or two aggressive prosecutors. … [And] even if prosecutors aren't being very aggressive right now, will they be more so in the future?" Suter told Law360. "I think health care providers are going to be really, really worried."

--Editing by Kelly Duncan.

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