As originally published in Bloomberg Law on June 29, 2022.
Health-care lawyers are being flooded with phone calls in the wake of the Supreme Court decision to throw out Roe v. Wade and return the abortion issue to the states.
Hospitals, health systems, telehealth providers, and doctors are looking for answers about whether Texas’s restrictive abortion law will come to other states, whether their health plans could be seen as aiding and abetting abortion, what privacy risks patients could face, and how the ruling in Dobbs v. Jackson Women’s Health Center will affect the care they can and can’t provide pregnant patients.
The nation’s top health-care lawyers packed a conference room at 7 a.m. Wednesday for an impromptu session to discuss the Supreme Court ruling at the American Health Law Association’s annual meeting in Chicago. But there were far more questions asked than answered.
One attorney asked about how technology platforms can prevent people from scraping their databases to find patients who had abortions out of state. “I don’t have the answer. I have a call in an hour and a half if anyone does,” she said.
Others offered court cases to study for hints on how to proceed: Planned Parenthood of Kansas v. Nixon, Bigelow v. Virginia, and Shapiro v. Thompson. Lawyers should also look at pre-Roe state laws. “You may be looking into the 1800s, you may be looking at 1925,” said Louise Joy, a partner at Joy & Young LLP in Austin, Texas, who facilitated the discussion.
“There is so much confusion,” Joy said. “Is your state even ready for this? Who knows what your laws mean? Have you found your laws? Are there laws that contradict each other and how do you resolve the conflict, all of which is going on in terms of having to deal with the emergencies that are in front of us right now?”
‘Aiding and Abetting’
The uncertain impact of the Texas six-week abortion ban both inside and outside the state was brought up by several attorneys at the early-morning session. The attorneys worked in firms or in-house and came from states across the country, including Texas, Missouri, Illinois, and California. Most of them are quoted anonymously due to restrictions put in place by the event organizers.
The Texas law bans abortion before six weeks and depends on enforcement through the mechanism of lawsuits filed by private citizens.
Possible targets of lawsuits include abortion providers and anyone who aids and abets an abortion after a heartbeat is detected. Among the open questions is what it means to “aid and abet” an abortion.
The uncertainty forced the quick shutdown in Texas of navigation services that help women travel out of state to obtain abortions, said an attorney based in Austin, Texas.
“There’s even disagreement about whether you can counsel regarding abortion, whether you can refer patients for services out-of-state, and whether you can contact out-of-state providers and give them information about patients,” she said.
The Texas law also worries employers who want to cover the travel costs of employees who travel out of state to obtain an abortion, said another Texas-based attorney. “Employers are concerned that offering those benefits will be seen as enabling abortions under the law,” he said.
Another attorney reported that a major airline has sought legal advice as to whether it could be held liable under the Texas law for knowingly transporting a woman out of the state to obtain an abortion.
The Commerce Clause of the US Constitution would probably pre-empt the state law in that instance, another attorney said. “But people are clearly not interested in being the test case,” he said.
Conflict of Laws
Telehealth providers are also grappling with the conflict of state laws regarding abortion, according to attorneys at the session.
An attorney representing nurse practitioners who provide medication abortions through telehealth predicted there will be “a huge number of cases and issues arising from whether and where you can do that.”
And privacy attorneys are fielding questions about the ability of law enforcement to obtain information about patients who have obtained abortions.
The Health Insurance Portability and Accountability Act includes a provision allowing covered entities—health-care providers, health plans, and health-care clearinghouses—to provide health information to law enforcement, said a Phoenix-based attorney.
HIPAA doesn’t require providers to hand over the information, but state laws might, she said.
And looming over the issue is the impact of recently issued federal rules aimed at removing obstacles to the flow of health data through the health-care system, the “information blocking” rules.
At issue is whether refusing to provide a woman’s health information to law enforcement would constitute information-blocking under the rules.
“We’re just starting to think about how the information-blocking rules will play into this,” she said.
Chilling Effect
“One of the many devastating impacts of the Dobbs decision is the uncertainty and confusion it has created,” said Ramona Thomas, general counsel for Planned Parenthood of Orange and San Bernardino Counties in California.
Joy, who has been working with clients on compliance with Texas’s SB8 law, encouraged lawyers to “take abortion back to the medical terminology,” Joy said. “You can’t outlaw abortions because abortions are the loss of pregnancy.” Legally, abortion is the outcome, not the procedure itself, she said.
The Supreme Court ruling will affect not just abortion providers, but also OB-GYNs and and emergency physicians treating patients having miscarriages. The treatment for a miscarriage is the same treatment for an abortion—doctors could prescribe patients mifepristone to mitigate their symptoms, which is the same drug used for most abortions.
Doctors have a legal obligation to stabilize pregnant patients experiencing a miscarriage or other medical emergency, an official from the Centers for Medicare & Medicaid Services reminded lawyers at the meeting’s keynote address. The Emergency Medical Treatment and Labor Act requires doctors to stabilize patients regardless of any state laws that could conflict with treatment.
Still, the Supreme Court’s decision could have a chilling effect on the decisions doctors make, especially in small rural facilities that can’t afford to litigate challenges.
“You have to make a decision within your organization, how far are you going to go? Are you going to let a woman die in your facility because she has a need that you won’t serve because you’re afraid of doing what it takes to save her life?” Thomas said.
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