The Supreme Court decision overturning Roe v. Wade will have immediate consequences. A stunning New York Times graphic illustrates how the number of states with abortion bans is expected to quickly grow to 26, leaving a quarter of Americans unable to access abortion services within 200 miles of their home. But the legal ramifications of this extraordinary erosion of human rights, along with states’ redefining of legal health care, will reverberate for years.
President Biden has already announced some steps that his administration will take to try to protect access to abortion rights. For its part, Congress may attempt to enact legislation to override the decision. But even if lawmakers were to succeed — an unlikely outcome, given the enormous political rifts — the constitutionality of such a federal law is open to serious question. As the Court’s decision in Dobbs v. Jackson Women’s Health Organization makes clear, the states hold the power to regulate abortion as just another medical procedure, and with minimal judicial oversight.
We can only begin to identify the cascade of legal issues that could flow from this decision. The fabric of state and federal laws has effectively woven in the right to abortion and limited state regulation in innumerable ways. To the extent that the Dobbs majority thought the Court is now done with the issue, it is wrong. Here we flag some of the issues that could arise.
Lawfulness of state regulation under limited judicial review. Limited judicial review doesn’t mean no review. Will states argue that a ban on abortion from the moment of fertilization extends to all or some types of contraceptives? Can a state ban abortion even when a woman’s life is in danger or she is at risk of severe and long-lasting physical harm? Even if this exception is required, how will states define it and what will it mean for health care providers and their patients? What will these bans mean for management of miscarriages and other types of medically necessary care that require the same treatment as abortion? Can a state force a woman to bear a child even though it is certain the child will die at or soon after birth? Can certain religious groups that believe that life begins only at fetal “quickening” (the moment when a mother first feels movement) claim that a total ban is an unconstitutional constraint on their religious freedom?
Medical emergencies and state abortion restrictions. The Emergency Medical Treatment and Labor Act obligates all Medicare-participating hospitals with emergency departments to furnish screening and stabilization services to people who seek care in emergency situations, defined as medical conditions that pose serious jeopardy to health, serious bodily impairment, or serious organ damage. Does this duty to provide emergency care override state limits on abortion?
Counseling pregnant patients about abortion. The Title X family planning program regulations require clinics to ensure nondirective counseling of pregnant patients. In states with abortion bans, can a state bar its Title X clinics from counseling patients about out-of-state surgical or medical abortion options?
Access to medication abortion drugs. Can a state ban people from receiving medication abortion services through out-of-state providers? The Biden administration asserts that a state’s attempt to ban these drugs, which have been approved by the Food and Drug Administration (FDA), is preempted, but this is currently being litigated, with more lawsuits likely. Additional states may adopt laws to limit medication abortion or block the use of telemedicine for accessing it. Though inconsistent with current FDA approval, 32 states now require medication abortions to be administered by a physician, and 19 require the physician to be physically present, thus blocking the use of telemedicine. Are these restrictions lawful?
Barring out-of-state travel. Will states be able to sanction people who travel to get an abortion out of state, or individuals who aid or abet such travel? Justice Kavanaugh appears to say no, but there has been no ruling to this effect.
Medical providers’ liability for failing to provide necessary care out of fear of state prosecution. Malpractice insurers will not shield physicians from liability for illegal acts. What if a provider aids in an abortion because the pregnancy is considered health- or life-threatening? What if the provider treats a pregnant person experiencing miscarriage and pregnancy loss but is accused of aiding an abortion? Will malpractice insurers withdraw coverage? Or will states step in to provide a liability shield and, if so, will there be any remedy for people refused treatment under such circumstances?
Insurance abortion coverage bans. Will more states bar insurers from coverage of some, most, or all abortion? States can regulate insurance, but federal law bars states from regulating coverage for private employer-sponsored plans that self-insure. Will states attempt to reach self-insuring employers through indirect means, such as by barring them from doing business with the state or by criminalizing any assistance for interstate travel? If so, will federal law preempt these restrictions?
Looking to Congress. Would a federal law — as opposed to a constitutional amendment — that preserves abortion rights be a lawful exercise of Congress’s legislative powers, given the vast regulatory powers assigned to the states? Conversely, could a future Congress ban abortion as a matter of federal law?
It will be years before we know the answers to these and other legal questions that arise in Dobbs’s wake.
