On June 24, 2022, in a 6-3 decision, the U.S. Supreme Court upheld the state of Mississippi’s ban on abortions after 15 weeks of pregnancy. Five justices joined Justice Samuel Alito’s opinion for the Court, with Chief Justice John Roberts concurring separately. The Supreme Court’s decision overruled Roe v. Wade and Planned Parenthood v. Casey, eliminating the constitutional right to abortion that was recognized in 1973.
Providers should consider if the change in law impacts any aspect of their healthcare-related operations. While some healthcare entities will be significantly impacted — with the change in law bringing new considerations for procedures, patient treatment and prescribing practices — other impacts, including those related to employee benefits, also must be carefully considered. McGuireWoods’ team of interdisciplinary lawyers is on the forefront of helping providers understand these issues.
I. Background Dobbs v. Jackson Women’s Health Organization; Roe v. Wade; Planned Parenthood v. Casey
— By Rebecca Rieckhoff, Royce DuBiner and Deepika Raj
The U.S. Supreme Court’s June 24 opinion in Dobbs v. Jackson Women’s Health Organization held that the right to an abortion is not conferred by the U.S. Constitution, overruling Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey. Under Roe and Casey, the Supreme Court had recognized, under the Due Process Clause of the 14th Amendment, a constitutional right to abortion, which protected a pregnant person’s right to terminate a pregnancy. Under Roe and Casey, states were not permitted to impose any “undue burden” on the right to an abortion — a standard the Court had defined to prohibit, among other things, placing any “substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability.” The Dobbs decision removes that limitation and permits states substantially more leeway to regulate or ban abortions.
In Dobbs, the Supreme Court was presented with a challenge to Mississippi’s Gestational Age Act, which prohibits abortions in the state of Mississippi after 15 weeks, “[e]xcept in a medical emergency or in the case of a severe fetal abnormality.” The Court rejected the challenge, stating that “[t]he Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision.” The Court abandoned Casey’s “undue burden” test and instead found that rational-basis review applies when evaluating state restrictions on abortion access. Per the Dobbs Court:
A law regulating abortion, like other health and welfare laws, is entitled to a “strong presumption of validity.” It must be sustained if there is a rational basis on which the legislature could have thought that it would serve legitimate state interests. These legitimate interests include respect for and preservation of prenatal life at all stages of development; the protection of maternal health and safety; the elimination of particularly gruesome or barbaric medical procedures; the preservation of the integrity of the medical profession; the mitigation of fetal pain; and the prevention of discrimination on the basis of race, sex, or disability. (Internal citations omitted).
Importantly, the Supreme Court declined to impose any specific gestational restrictions on a state’s ability to ban abortion services. Discussing Chief Justice Roberts’ concurring opinion, which described the right to an abortion recognized in Roe and Casey as “extend[ing] far enough to ensure a reasonable opportunity to choose,” the Court noted that it would not set any length of time during pregnancy during which a state could not restrict abortion access. The Court’s opinion also does not specify whether the rational-basis standard, which now applies to abortion regulations, would prevent states from criminalizing the provision or receipt of abortion care nor whether it would require states to provide exceptions from any ban for abortions that are determined necessary to save the life or health of the mother. These and other questions must await further litigation.
As detailed below, the implications of this decision are potentially significant not only for healthcare providers but also more broadly for employers.
All impacted entities and providers should consult closely with counsel to ensure ongoing compliance with legal changes as states react to this ruling.
II. Post-Dobbs Considerations for Healthcare Providers
- Cross-Jurisdictional Practices
— By Joan Anderson, Jocelyn Mitnaul Mallette and Clay Landa
Dobbs raises significant liability and policy considerations for hospitals, clinics and individual providers. For larger health systems with facilities and providers in multiple states, crafting clinical policies that can be applied consistently across state lines, while still affording providers appropriate medical decision-making authority, likely will present a challenge. Providers will need to be flexible in adapting to policy modifications as lawmakers and licensing boards react in the immediate aftermath of the Dobbs decision.
Additionally, the reversal of Roe and Casey has and will continue to cause patients to seek care outside of states where abortion is prohibited or severely limited (restricted-access states). In states where abortion remains legal (access states), providers are preparing for and already providing surge capacity to out-of-state residents who now must travel to receive abortion care. Providers with operations across state borders and referral networks face the uncertainty of a potential next phase of abortion regulation and enforcement, with a number of restricted-access states indicating they may undertake efforts to restrict cross-border abortions. It bears noting that Attorney General Merrick Garland issued a statement saying the “[Dobbs] decision does not eliminate the ability of states to keep abortion legal within their borders. And the Constitution continues to restrict states’ authority to ban reproductive services outside their borders.” As of June 29, 2022, more than 80 elected prosecutors have agreed to “refrain from prosecuting those who seek, provide, or support abortions,” but that sentiment is far from universal. A number of access states have also taken steps or indicated a desire to protect their states’ providers who may render abortion services to out-of-state residents.
However, while provisions for out-of-state enforcement of strict anti-abortion measures will undoubtedly work their way through courts in the coming years, fighting efforts to impose criminal or civil penalties, including imprisonment or fines, could cost healthcare providers valuable time and significant money, even if those efforts ultimately fail.
Against the backdrop of state-specific restrictions, hospitals also must consider their existing requirements under the federal Emergency Medical Treatment & Labor Act, 42 U.S. Code § 1395dd, which include screening an individual — including a patient in labor — who may be seeking emergency care and stabilizing the individual within the hospital’s capability.
Healthcare providers should make efforts to remain up to date on state-specific legislative changes and become comfortable with the idea that policy review and revision will be a continuous process. McGuireWoods strongly encourages clients to seek the advice of experienced counsel to help navigate this changing landscape.
- Reproductive Medicine and Fertility Services
— By Alexis Reynolds
Many states have laws on the books governing assisted reproductive medicine and assisted reproductive technology (ART) procedures, such as in vitro fertilization (IVF) and similar procedures. Each state law is unique in its requirements regarding the handling, donation, transfer, destruction or storage/cryopreservation (freezing) of eggs and sperm and/or embryos in the reproductive cycle, creating a patchwork of laws likely to gain new scrutiny post-Dobbs.
For example, some state laws impacting reproductive medicine are linked to abortion laws. Pennsylvania’s Abortion Control Act requires that IVF providers file quarterly reports with the Pennsylvania Department of Health containing information such as the number of eggs fertilized, the number of fertilized eggs destroyed or discarded and the number of women implanted with a fertilized egg. See 18 Pa.C.S.A. § 3213(e).
Other state laws are related to fetal tissue research or human cloning. Louisiana, for example, prohibits the farming or culture of an in vitro fertilized human ovum solely for research purposes or any other purposes. Louisiana also prohibits the sale of a human ovum, fertilized human ovum or human embryo. LSA-R.S. 9:122. In addition, Arizona prohibits any “attempt to create an in vitro human embryo by any means other than fertilization through the combining of a human egg with a human sperm,” which would prohibit human cloning and impact research on embryos. A.R.S. § 36-2312.
Many states have disclosure, licensure and permit regulations that govern the practice by healthcare providers and facilities that handle reproductive issues. Virginia’s Medical Practice Act requires that IVF providers and fertility clinics inform patients of the clinics’ fertility treatment and IVF success rates, along with requiring disclosure of testing protocols for gamete providers, live birth success rates, pregnancies per completed cycle and total number of live births. See VA Code Ann. § 54.1-2971.1.
As a result of Dobbs, the details of state laws, as well as pre-existing “trigger laws,” will be critical to understanding potential impacts on reproductive medicine and fertility services within a particular state. All impacted entities and providers also should closely monitor forthcoming legislation and state action and enforcement in this area. These state regulations should be researched thoroughly to determine whether and how they apply to reproductive medicine services or infertility treatments, as the scope of such regulations will vary from state to state.
In light of Dobbs, the American Society for Reproductive Medicine (ASRM) Center for Policy and Leadership has published the first report in a series of reports monitoring state activity surrounding abortion care and its potential impact on reproductive medicine technologies, including IVF. The ASRM report notes that a wide range of abortion-related legislation could, intentionally or unintentionally, have an impact at some or all stages of the fertility process. For example, the report notes, “‘fetal personhood’ legislation — which confers fetuses and embryos the same legal standing as a human being outside the womb — may become more common in the post-Roe world, exposing routine ART procedures such as IVF, preimplantation genetic testing, and the discarding of unused embryos to legal challenge and providers who practice them to potential liability.”
These laws should be closely considered in any reproductive medicine and fertility practice and practices should seek legal counsel to ensure continuing compliance.
- Drug Access and Availability
— By Royce DuBiner and Kate Hardey
What remains to be seen is how this decision will impact drugs such as mifepristone that are used within 70 days of gestation to terminate pregnancy. The U.S. Food and Drug Administration (FDA) approved mifepristone in 2016 as meeting the requirements for safety and efficacy but did so under a risk evaluation and mitigation strategy (REMS). Part of that program required compliance with key elements prior to prescribing the drug, such as it can be administered only by a qualified provider, the provider must sign a provider agreement form, there must be a signed patient agreement form, and pharmacies that dispense it must be certified by FDA.
In practice, however, FDA seldom followed or enforced these requirements. The dispensing of a drug occupies a hybrid regime between FDA and a state. FDA has exclusive authority to approve a drug for sale in the United States. Whereas states regulate the dispensing of a drug, healthcare provider licensure and the ability to dispense the drug outside a pharmacy setting, such as in an office, FDA controls the approval and manufacture, and retains ultimate authority to regulate how a drug is sold. Attorney General Garland in a post-Dobbs opinion statement explained that, in DOJ’s view, a state cannot ban a drug that the FDA has approved. Last year, FDA modified the REMS program to allow mifepristone to be dispensed via mail.
The disagreements between state and federal governments on where regulatory lines are drawn will lead to continued developments on this issue. Providers and facilities should monitor their medical board, board of pharmacy and state Attorney General’s offices on developments on the regulation of mifepristone. Providers and facilities also may want to consider the jurisdictional rules for sending the drug and consider the jurisdiction where the drug is sent. This may include and necessitate a change in policy to adjust to state regulatory requirements in the wake of Dobbs. At this time, birth control remains unrestricted and still subject to the requirements of the labeling of the product. In the future, states may move to place restrictions around at least some forms of birth control.
III. Post-Dobbs Considerations for Employers
- General Employment Law Concerns
— By Summer L. Speight and Carolyn M. Trenda
The U.S. Supreme Court’s decision on abortion rights touches on a deeply polarizing issue. Employers are likely to have workers falling on both sides of the spectrum — those who oppose abortion rights and those who favor abortion rights. With the spotlight on abortion rights, this topic is more likely to carry over into the workplace, and expression relating to abortion rights may implicate various employment laws and policies.
Expression regarding abortion rights may implicate Title VII to the extent it relates to sincerely held religious beliefs. Under Title VII, religious expression should be treated no differently than other types of non-religious expression and should be permitted to the extent it is not harassing or disruptive. On the flip side, employers must watch out for expression that could rise to the level of a hostile work environment, such as discussions mocking or criticizing religious beliefs about abortion rights. Employers should remind workers about their anti-harassment policies and enforce the same.
Employee discussions touching on abortion rights could also be protected under the National Labor Relations Act (NLRA) to the extent they relate to working conditions. The NLRA gives employees, whether in a union or nonunion workplace, the right to act together to improve working conditions. That would include comments about healthcare benefits and coverage, leave policies, and other terms and conditions of employment. Prior to disciplining employees for abortion-related comments that touch on working conditions, employers should consider whether the comments may be protected under the NLRA.
The following are key employment considerations:
- Employers should review their dress code to determine whether their policies would permit or prohibit attire expressing views related to abortion rights and whether any changes need to be made. Dress codes should be neutral and applied uniformly.
- Employers may receive transfer requests from workers looking to move to another state with different laws on abortion. Employers should review any policies governing employee transfers and consider whether such policies should be implemented or amended.
- Employers also may receive leave requests in the wake of the Dobbs decision for time off related to travel and/or seeking abortion-related services. Employers may want to review their current leave policies and determine if any changes need to be made.
- Employee Benefits Concerns
Employer-provided group health plans are subject to certain federal laws that require coverage of certain services (or penalize plans in different ways for failing to provide services). Abortion, specifically, is not among those services required to be provided. Nevertheless, employer plans typically cover women’s reproductive services in a broad scope, especially where a woman’s physician determines a service to be medically necessary or advisable. Some group health plans also provide travel benefits for medical services that, within certain guidelines, may qualify as tax-preferred medical benefits under Section 213(d) of the Internal Revenue Code. As discussed below, a potential effect of the Dobbs decision is possible, unanticipated changes in the way employers provide health benefits to employees.
Following the Dobbs decision, states are free to enforce laws restricting abortion-related services. Many states have laws in place that criminalize abortion, including states with “trigger laws” that kicked in only because Roe was overturned. Some state laws also punish those who “aid and abet” or “assist” with the provision of any abortion-related services. The application of these state laws to employer group health plans depends on many factors and remains to be tested.
Employer group health plans are governed by, among other laws, the Employee Retirement Income Security Act of 1974, as amended (ERISA). One of the aims of ERISA is to promote uniformity in the administration and planning of employee benefit plans. Importantly, ERISA also contains a broad provision preempting, with a few exceptions, “any and all State laws” that “relate to” any ERISA employee benefit plan (see ERISA Section 514(a); 29 U.S.C.A. Section 1144(a)). But notable exceptions to this preemption rule are generally applicable state criminal laws.
Employer group health plans governed by ERISA can be self-funded (self-insured) or fully insured. Employer group health plans that are self-funded (where the employer sets plan design and bears claim risk) have more leeway in plan design because they are not subject to any particular state insurance commission or regulation, including any state insurance mandate that may restrict or prohibit abortion-related services.
On the other hand, ERISA group health plans that are fully insured (where the carrier, or issuer, directs the terms of the plan/policy and bears the risk of claims experience) typically comply not only with federal laws but also with state law where the policy is issued. Thus, if state insurance laws prohibit or restrict abortion-related services, the carrier or issuer will not cover such services within that state and, if state law so requires, may attempt to restrict coverage elsewhere. As noted above, the extent to which ERISA preemption applies to any of the laws restricting access or abortion or abortion-related services (including travel benefits), and whether the distinction between an ERISA-governed self-funded plan or an ERISA-governed fully insured plan matters for this purpose remains unclear. The analysis will largely depend on the wording of the particular law at issue — i.e., whether it has a general applicability to the entire population or applies to a subset of the population and relates to benefits under an ERISA-governed plan. This is especially true for laws criminalizing any aspect of aiding, abetting or assisting abortion-related activity as ERISA preemption historically has not applied to generally applicable state criminal laws.
After the Dobbs decision, employers with either fully insured or self-funded plans should review the terms of their group health plan documents, assess the type of coverage those plans provide and consider whether to add, enhance, amend or otherwise alter coverage in response to the Dobbs decision. This review also should take into account and track the development and enforcement of restrictive statutes in the various states and any criminal elements in those statutes. Plan sponsors of self-funded group health plans should work with any third-party administrators to discuss implications of the Dobbs decision and any changes that need to be made in claims processing.
Finally, while ERISA group health plans are likely to be the main focus of employers’ attention in the employee benefits area, employers may consider providing support for employees or dependents seeking abortion services outside the ERISA benefit plan context (for example, through direct reimbursement arrangements). These solutions also carry legal concerns, particularly with respect to the application and enforcement of state law in states with restrictive statutes.
McGuireWoods’ interdisciplinary team can look at all aspects of the decision’s impact on a provider’s operations. The team will monitor updates and information as the law evolves, and is ready and available to help assess the risk of specific transactions as well as immediate considerations for practices, providers and facilities.