I. Introduction
On June 24, 2022, the U.S. Supreme Court issued its decision in Dobbs v. Jackson Women's Health Organization, overturning Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey and holding that the U.S. Constitution does not confer a right to abortion. The case dealt with the constitutionality of a Mississippi law generally prohibiting abortions after fifteen weeks of gestational age, several weeks before a fetus is considered to be viable.1 Under Roe and its progeny, states were prohibited from restricting pre-viability abortions.2 In upholding the Mississippi law, the Court overruled Roe and Casey, and held that the U.S. Constitution makes no express reference to abortion, and that the right could not be implicitly found in the First, Fourth, Fifth, Ninth, or Fourteenth Amendments, in which Roe and Casey had grounded the right, because abortion is not "deeply rooted in th[e] Nation's history and tradition" or "implicit in the concept of ordered liberty."3
Dobbs has returned the regulation of abortion to the states. The response has been swift and varied. While some states have passed legislation to re-establish the right to an abortion under state law, other states have trigger laws or new legislation that ban abortions in almost all circumstances, and additional states are working to either enact similar bans or place gestational limits on the procedure.4
Dobbs has had a profound impact on health care providers, leaving them to the difficult task of interpreting and complying with a patchwork of new and often conflicting laws. This article provides an overview of some of the key considerations for health care providers arising out of Dobbs, including those concerning the possible extraterritorial application of state abortion laws, including shield laws providing certain protections for the provision of reproductive health care (Section I), telemedicine (Section II), privacy obligations under HIPAA (Section III), fertility-related care (Section IV), and emergency care under the Emergency Medical Treatment and Active Labor Act (EMTALA) (Section V).
II. The Potential Extraterritorial Application of State Abortion Laws
One key question that has arisen post-Dobbs is whether states with abortion bans can apply their laws extraterritorially to impose liability on providers in states where abortions are legal for providing abortion-related care to out-ofstate residents. The question is especially tricky in the context of medication abortions administered via a telehealth appointment. As discussed in Section II, a telemedicine abortion involves a medical consultation conducted via video chat or another modality for communication, during which the medical provider will prescribe medication—an approved two-pill regimen of mifepristone (to block the pregnancy hormone progesterone) and misoprostol (to induce contractions)—for the patient to ingest to induce an abortion.5 Ostensibly, a provider can conduct the medical visit and prescribe the medications to a patient located in a different state. For this reason, telemedicine abortions give rise to novel situations that may invite possible extraterritorial application of abortion restrictions: for example, if a provider in a state where abortion is legal conducts a telemedicine abortion consultation with a patient in a state that prohibits providing or "aiding or abetting" the procurement of an abortion, can that consultation alone run afoul of the state's restrictions?6 If that same provider sends a prescription for abortion medication to an in-state pharmacy, and the patient travels across state lines to pick up the prescription and takes mifepristone while in that state and misoprostol after returning home, does this mean the abortion took place in a state where abortions are illegal?
To curb the extraterritorial application of other states' abortion bans, various states have adopted laws, either via legislation or executive order, to provide protections to instate providers facing out-of-state lawsuits or criminal prosecutions resulting from the provision of abortion-related care to women visiting from states with abortion bans.7 This section provides an overview of such state "shield laws," and outlines key considerations for providers regarding the extraterritorial application of state abortion laws.
Footnotes
1. Dobbs v. Jackson Women's Health Org., 142 S. Ct. 2228, 2241-42 (U.S. 2022).
2. Id. at 2242.
3. Id.
4. See infra Section 1. See also New York Times, Tracking the States Where Abortion is Now Banned, Jun. 26, 2023.https://www.nytimes.com/i nteractive/2022/us/abortion-laws-roe-v-wade.html.
5. FDA, Questions and Answers on Mifepristone for Medical Termination of Pregnancy Through Ten Weeks Gestation (Jan. 4, 2023) https://www.fda.gov/drugs/postmarket-drug-safety-information-patients-and-provider s/questions-and-answers-mifepristone-medical-termination-pregnancy-thr ough-ten-weeks-gestation; Pam Belluck, FDA Will Permanently Allow Abortion Pills by Mail. New York Times (Dec. 16, 2021) https://www.nytim es.com/2021/12/16/health/abortion-pills-fda.html.
6. See Tex. Health & Safety Code § 171.208(a).
7. Molly Gamble, Erica Carbajal, and Nika Schoonover, States add protections for healthcare providers who perform abortions for out-of-state residents, Becker's Hospital Review (Jul. 13, 2022) https://www.beckershos pitalreview.com/legal-regulatory-issues/states-add-protections-for-healthca re-providers-who-perform-abortions-for-out-of-state-residents.html; further, on April 26, 2023, Senator Patty Murray (D-WA) and House Representative Kim Schrier, MD (D-WA), reintroduced S.1297 (Let Doctors Provide Reproductive Health Care Act), which would shield providers furnishing legal abortion care from being subject to out-of-state abortion restriction and from liability for administering legal abortion services to patients from any other state.
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Originally published by Thomson Reuters.
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