Health lawyers are inundated with phone calls following the Supreme Court’s decision to dismiss Roe vs. Wade and refer the issue of abortion to the States.
Hospitals, health systems, telehealth providers and physicians are seeking answers on whether Texas’ restrictive abortion law will apply to other states, whether their health plans could be considered helpful and encouraging abortion, what privacy risks patients might incur and how the decision in Dobbs v. Jackson Women’s Health Center will affect the care they can and cannot provide to pregnant patients.
The nation’s top health lawyers filled a conference room at 7 a.m. Wednesday for an impromptu session to discuss the Supreme Court’s decision at the American Health Law Association’s annual meeting in Chicago. But there were far more questions asked than answered.
A lawyer asked how tech platforms can stop people from scraping their databases to find patients who had out-of-state abortions. ” I do not have the answer. I have a call in an hour and a half if someone does,” she said.
Others offered court cases to study for guidance on how to proceed: Planned Kinship of Kansas vs. Nixon, Bigelow v. Virginiaand Shapiro v. Thompson. Lawyers should also review the pre-deer state laws. “You might be looking at the 1800s, you might be looking at 1925,” said Louise Joy, a partner at Joy & Young LLP in Austin, Texas, who moderated the discussion.
“There’s 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, everything that happens in terms of having to deal with the emergencies that are in front of us right now? »
‘Help and complicity’
The uncertain impact of Texas’ six-week abortion ban, both inside and outside the state, was discussed by several attorneys in the morning session. The attorneys worked in firms or in-house and hailed 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.
Texas law prohibits abortion before six weeks and depends on enforcement through the mechanism of private citizen suits.
Possible targets for lawsuits include abortion providers and anyone who aids and abets an abortion after detecting a heartbeat. Among the open questions is what it means to “aid and encourage” an abortion.
The uncertainty has forced the rapid shutdown in Texas of shipping services that help women travel out of state to get abortions, an Austin, Texas-based attorney has said.
“There are even disagreements about whether you can counsel on abortion, whether you can refer patients to out-of-state services, and whether you can contact out-of-state providers and give them patient information,” she said.
Texas law also worries employers who want to cover travel expenses for employees who travel out of state to get abortions, another Texas-based lawyer said. “Employers are concerned that offering these benefits will be seen as allowing abortion under the law,” he said.
Another attorney reported that a major airline sought legal advice on whether it could be held liable under Texas law for knowingly transporting a woman out of state to have an abortion.
The Commerce Clause of the US Constitution would likely override state law in this case, another lawyer said. “But people are clearly not interested in being the test case,” he said.
Conflict of laws
Telehealth providers are also grappling with conflicting state laws regarding abortion, according to attorneys at the session.
A lawyer representing nurse practitioners who perform medical abortions via telehealth predicted that there will be “a large number of cases and issues related to whether and where you can do it.”
And privacy attorneys are responding to questions about law enforcement‘s ability 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 agencies. the order, said a Phoenix-based attorney.
HIPAA doesn’t require vendors to hand over the information, but state laws might, she said.
And the impact of recently released federal rules aimed at removing barriers to the flow of health data in the health care system, the “information blocking” rules, looms large on the issue.
At issue is whether refusing to provide information about a woman’s health 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.
“One of the many devastating effects of 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 worked with clients on Texas SB8 compliance, encouraged attorneys to “bring abortion back to medical terminology,” Joy said. “You cannot ban abortions because abortions are the loss of a pregnancy.” Legally, abortion is the result, not the procedure itself, she said.
The Supreme Court’s decision will affect not only abortion providers, but also OB-GYNs and emergency physicians treating miscarriage patients. The treatment for a miscarriage is the same as for an abortion – doctors might prescribe patients mifepristone to ease their symptoms, which is the same drug used for most abortions.
Physicians have a legal duty to stabilize pregnant patients who suffer a miscarriage or other medical emergency, an official from the Centers for Medicare & Medicaid Services reminded the attorneys during the meeting’s opening remarks. The Emergency Medical Treatment and Labor Act requires physicians to stabilize patients regardless of state laws that might conflict with the treatment.
Still, the Supreme Court’s ruling could have a chilling effect on the decisions doctors make, especially in small, rural facilities that can’t afford to challenge them in court.
“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 meet because you’re afraid to do what it takes to save her life? said Thomas.