Three Considerations For Health Care Providers After The Dobbs Decision

Published date28 June 2022
Subject MatterFood, Drugs, Healthcare, Life Sciences
Law FirmFoley & Lardner
AuthorMr Claire N. Marblestone

Last week, the Supreme Court issued a decision in Dobbs v. Jackson Women's Health, holding that the Constitution does not confer a right to abortion, and overruling precedent established by Roe v. Wade, 410 U.S. 113,and Planned Parenthood of Southern Pa. v. Casey, 505 U.S. 833. Health care providers that provide a full spectrum of women's health care services, including abortion, will need to understand how the Dobbs decision impacts the care they can provide to patients. Absent a federal protection of a patient's ability to obtain an abortion, providers operating in this space will need to understand the scope of State laws that apply to abortion services. Below are three key considerations that health care providers will need to consider.

1) Know the permissible scope of abortion services in the State.

Prior to the Dobbs decision, Supreme Court precedent protected the ability of a patient to receive an abortion in the first trimester of pregnancy, and allowed States to regulate abortions as long as the law did not place an "undue burden" on the right to an abortion. In light of the Dobbs decision which removes federal protection to the right to abortion services, State law will dictate whether a patient can obtain an abortion. Health care providers will now need to be particularly aware of the laws governing abortion services in their state. Many States, including Kentucky and Louisiana, have "trigger" laws that will go into effect immediately or shortly after the Dobbs decision, which will prohibit abortions in those states altogether. Other states, such as Wisconsin and Michigan, have "zombie" laws that were passed prior to Roe v. Wade, that could now become enforceable.

Many states have laws which restrict the way an abortion can be provided, including the type of provider who can provide the service, the location where the service may be provided, and the scope of informed consent required for the procedure. While many of these laws have been in place for several years, it is critical for providers in this space to understand what is permitted under the state law where they are practicing, and track legislative developments in the state which may impose further restrictions on the way to provide abortions in the state.

2) Understand permissible ways to prescribe medication abortion via telemedicine.

The federal Food and Drug Administration (FDA) has approved medication that will end an early stage pregnancy, and recently removed in-person dispensing...

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