The Supreme Court of the United States has issued its highly anticipated decision in Dobbs v. Jackson Women’s Health. The decision holds that there is no federal constitutional right to an abortion and will result in a sea change in how abortions will be regulated.
The Ruling
While many organizations with varying perspectives or objectives will be publishing detailed thoughts on the reasoning underlying the Dobbs decision in the coming days, the purpose of this alert is to outline what the Dobbs decision does and does not do and to provide practical takeaways to help health care entities plan for the future.
What the Dobbs Ruling Does:
- Does hold that there is no federal constitutional right to an abortion, including under either an implied right of privacy under the Due Process Clause of the Fourteenth Amendment or under the Equal Protection Clause.
- Does overturn Roe v. Wade and its holding that viability is the standard for regulation.
- Does overturn Casey v. Planned Parenthood and its holding that undue burden is the standard for regulation.
- Does return the regulation of abortion and all related issues to the states.
- Does establish that state abortion laws will now be reviewed by courts using the “rational basis” standard for review. In order to survive “rational basis” review, a court needs to merely determine that the state abortion law is rationally related to a legitimate government interest.
What the Dobbs Ruling Does Not Do:
- Does not ban, prohibit or otherwise limit abortions under any federal constitutional or legal framework.
- Does not establish a theory of personhood, life or viability.
- Does not establish rights for the fetus.
- Does not ban, prohibit or otherwise limit access to contraception or overrule prior Supreme Court decisions protecting such access.
- Does not alter any other health care law or regulation at the state or federal level.
- Does not change the standard of care.
Practical Takeaways
While it is impossible at this time to gauge the full impact of the Dobbs decision on the health care industry, the most important takeaway from Dobbs is that abortion will be regulated independently by each state. Given the vast differences that currently exist or likely will arise among state laws, issues involving abortion will become increasingly complex as pregnant individuals travel between states, receive care via telehealth and are treated by health care providers licensed in multiple states. Obstetrical and gynecological services, emergency services and primary care services are most likely to be immediately affected.
Health care organizations can start to prepare for the impact of the Dobbs decision by doing the following:
- Identify service lines and operations most likely to be immediately affected by the Dobbs decision.
- Identify the states in which the organization operates and the states in which its health care providers are licensed, registered or certified.
- Identify the ways in which the identified states currently define and regulate abortion, including whether such states’ constitutions provide implied or explicit rights with respect to abortion.
- For health care organizations near borders of states with significantly differing abortion laws, pay particular attention to civil and criminal abortion statutes, including abortion-assistance-related statutes, in neighboring states.
- Identify any new reporting requirements created by state abortion laws, including new mandatory reporting requirements to state license boards or law enforcement.
- Establish a process for monitoring state legislative responses to the Dobbs decision.
- Ensure that health care providers in affected service lines are aware that the standard of care, obligations under EMTALA to provide stabilizing treatment, HIPAA privacy and confidentiality protections and other health care laws continue to apply and have not changed under the Dobbs decision.
- As necessary, begin engaging advocacy teams on issues specific to organizational operations affected by applicable state laws.
Hall Render and its attorneys are committed to remaining abreast of the fast moving developments that will arise over the next weeks and months in response to the Dobbs decision. For questions about the Dobbs decision, state laws governing abortion or related topics, please contact:
- David Honig at (317) 977-1447 or dhonig@wp.hallrender.com;
- Jennifer Skeels at (317) 977-1497 or jskeels@wp.hallrender.com;
- Stephen Rose at (425) 278-9337 or srose@wp.hallrender.com;
- Jennifer Shoup at jshoup@wp.hallrender.com or (317) 977-1478;
- Matthew Schappa at (317) 429-3604 or mschappa@wp.hallrender.com;
- Kathryn Costanza at (303)-801-3534 or kcostanza@wp.hallrender.com;
- Caitlin Bell-Butterfield at (919) 228-2408 or cbell-butterfield@wp.hallrender.com; or
- Your primary Hall Render contact.
Hall Render blog posts and articles are intended for informational purposes only. For ethical reasons, Hall Render attorneys cannot—outside of an attorney-client relationship—answer an individual’s questions that may constitute legal advice.
