Dobbs v. Jackson Women’s Health: Abortion Laws and How Physicians Can Protect Themselves
The recent decision on Dobbs v. Jackson Women’s Health by the U.S. Supreme Court has pushed the issue of reproductive health back to state legislators. As each state grapples with how it will deal with this issue, it has created tremendous uncertainty for the physicians who serve those communities.
Physicians are caught in an impossible situation of trying to care for their patients while operating within the law – with boundaries that are less clear and well-defined as they have been for the past 50 years.
As we have for the past 47 years, MIEC will continue to stand with and support our membership.
It is unclear how practitioners may be impacted in traditional professional (civil) liability, but MIEC’s tradition and philosophy is to interpret our policy broadly and we will continue to seek to extend coverage to our members where we can.
Criminal liability is a different issue and is not covered by insurance. Where members need advice beyond our own capabilities, MIEC will be working with organized medicine to provide expert legal advice to help physicians who are concerned about providing care and their potential criminal exposure. If you have a question or concern like this, please contact us at email@example.com and we will do what we can to help.
Today, we are also publishing information that we hope will help our members understand the situation in their own states. We hope this will enable them to safely provide the best care possible to their patients while operating within the law. We will continue to update this document and evolve our response as the situation develops.
The recent decision by the U.S. Supreme Court in the case of Dobbs v. Jackson Women’s Health Organization held that the Constitution of the United States does not confer a right to abortion, effectively remitting abortion rights and restrictions to the state level.
In this article, we lay out the state abortion laws in Alaska, California, Hawaii, and Idaho, including changes resulting from the Dobbs decision; explore the ripple effects of the decision; and provide MIEC member physicians with guidance to protect themselves.
Note: MIEC recognizes that the language used to describe abortion-related care is politically and culturally sensitive. In this article we have striven to use clinically accepted terminology and directly quoted statutory language where applicable.
Following is a partial summary of abortion laws by state. For a summary of laws specific to minors and parental notification and/or consent, please see Parental Involvement in Minor Abortions.
- Abortion in Alaska is legal throughout pregnancy. Abortions are limited to certain practice settings, and patients must receive state-directed counseling that includes information about the potential physical and emotional impacts of the procedure. (Alaska Admin. Code tit. 12, section 40.070)
- In 1997 Alaska passed a law banning abortions after 12 weeks gestation, except in cases where the life of the mother is endangered. However, that law was challenged in the Alaska Supreme Court, which found the law to be unconstitutional and issued a permanent injunction prohibiting its enforcement.
- Abortion is legal in California up to the point of fetal viability, and it may be performed past that point in cases where the mother’s life or health is endangered.
- On June 24th Governor Gavin Newsom signed AB 1666 into law. This law declares other states’ laws allowing civil actions arising from abortions to be contrary to California public policy, thus preventing the application of case law or the enforcement of out-of-state judgments within California.
- Pending bills in the state legislature related to abortion include:
- Protection of medical privacy to prevent patients from being compelled to testify or provide information in an out-of-state investigation or action related to abortion (AB 2091)
- Removing requirement for coroner to investigate fetal deaths after 20 weeks gestation (AB 2223)
- Prohibition on medical and nursing board suspension/revocation of a license solely for performing an abortion (AB 2626)
- In November 2022, California voters will decide whether to enshrine the right to abortion and contraception in the state Constitution (Proposition 1).
- California joined Oregon and Washington in the Multi-State Commitment to Reproductive Freedom, which includes, among other pledges, a refusal of “extradition of individuals for criminal prosecution for receiving legal reproductive healthcare services in our states.”
- Hawaii was the first state in the U.S. to legalize abortion in 1970. Abortion is legal up to viability and may be performed at or after viability only if the patient’s life or health is endangered.
- Only a licensed physician or surgeon or licensed osteopathic physician or surgeon may provide abortion care. Legislation passed in 2021 authorizes APRNs to provide medication or aspiration abortions in the first trimester for non-viable pregnancies.
- SB 1385, signed into law in 2020, criminalizes performance of abortions in Idaho, with exception of a narrow set of circumstances under which physicians can defend themselves against criminal accusations. These affirmative defenses include preventing the death of the woman, or in cases of rape or incest that have been reported to law enforcement. SB 1385 is a “trigger law” in that it automatically goes into effect on 8/25/22, 30 days following certification of the Supreme Court decision in SB 1385 is currently being challenged by a lawsuit pending in the Idaho Supreme Court.
- Criminal penalties include 2-5 years imprisonment and medical license suspension (first offence) or revocation (second offense).
- The law allows for abortion in instances in which “the physician determined, in his good faith medical judgment at the time and based on the facts known to the physician at that time, that the abortion was necessary to prevent the death of the pregnant woman.” This exception specifically does not apply in instances where the physician believes that the woman may take action to harm herself.
- The law requires that the physician perform or attempt to perform the abortion in the manner that “provided the best opportunity for the unborn child to survive, unless…termination of the pregnancy in that manner would have posed a greater risk of death of the pregnant woman.”
- The law allows for performance of abortion in cases of rape or incest, but only if a related report has been made to law enforcement and/or child protective services and a copy of the report is provided to the physician.
- The Fetal Heartbeat Preborn Child Protection Act (SB 366), was signed into law in 2021. The law prohibits abortions upon detection of fetal cardiac activity (at approximately 6 weeks of gestation), except in cases of medical emergency. This law is also subject to pending litigation, but it is otherwise set to go into effect on 8/19/22.
- The Fetal Heartbeat law was amended in 2022 (via SB 1309) to allow for a “private right of action” (civil litigation) to be brought against providers who perform abortions after 6 weeks. The law allows the father, grandparents, siblings, aunts, and uncles of a “preborn child” to each sue an abortion provider for a minimum of $20,000 in damages within four years after the abortion. The law does not permit a claim by a person who impregnated the mother through an act of rape or incest, but it does not prohibit claims by the individual’s immediate family members.
- The Fetal Heartbeat law has an exception for “medical emergency,” defined as: “a condition that, in reasonable medical judgment, so complicates the medical condition of a pregnant woman as to necessitate the immediate abortion of her pregnancy to avert her death or for which a delay will create serious risk of substantial and irreversible impairment of a major bodily function.”
- The Idaho Medical Association successfully lobbied for further amendments to protect physicians (via SB 1358), which were passed in 2022. Amendments included the removal of language that would have prohibited a physician defendant from recouping attorney fees in the event of a successful defense of a lawsuit, and the removal of a requirement for a physician defendant to bear the burden of proof regarding liability.
- Planned Parenthood filed lawsuits challenging Idaho’s trigger law and the Fetal Heartbeat law shortly after the Dobbs decision was announced. The Idaho Supreme Court held a hearing to determine whether enforcement of both laws should be delayed pending the outcome of the cases, but the Court determined that the laws will not be delayed. Thus, the Fetal Heartbeat law will go into effect on August 19th, while the private right of action went into effect immediately following a hearing on August 12th. The criminal “trigger” law is set to become effective on August 25th, unless it is stayed at an upcoming hearing on August 22nd.
Federal Government Response and EMTALA:
The Biden Administration has taken steps to preserve access to care in the wake of the Dobbs decision. Most notably, on 7/8/22 President Biden issued an Executive Order protecting access to reproductive healthcare services and subsequently, HHS issued a statement reaffirming physician requirements under Emergency Medical Treatment and Active Labor Act (EMTALA).
Under EMTALA, an “emergency medical condition” is defined as: “medical conditions with acute symptoms of sufficient severity that, in the absence of immediate medical attention, could place the health of a person (including pregnant patients) in serious jeopardy, or result in a serious impairment or dysfunction of bodily functions or any bodily organ. Further, an emergency medical condition exists if the patient may not have enough time for a safe transfer to another facility, or if the transfer might pose a threat to the safety of the person.”
In its statement, HHS clarified that abortion is one of the required stabilizing treatments under EMTALA, and confirmed that EMTALA requirements preempt any state laws banning abortions- even if there are no exceptions for emergency care, or if emergency care is more narrowly defined under state law.
On 8/2/22 the U.S. Department of Justice filed a lawsuit challenging Idaho’s SB 1385, arguing that the prohibition of abortions except for life-saving treatment would violate EMTALA’s requirement to perform abortions in other emergency situations.
Importantly, HHS has also issued guidance on HIPAA and disclosures of information relating to reproductive health care.
Telemedicine and Patients Seeking Out-of-State Care:
Questions have arisen around how disparate state laws will be navigated when patients travel to other states to receive reproductive or abortion-related care, or when a physician licensed in multiple states prescribes medication for purposes of abortion via telemedicine.
Some states are seeking not only to prohibit abortion within state jurisdictions but also to prohibit citizens from obtaining out-of-state abortions. For example, Missouri advanced a proposal to allow private citizens to sue Missouri residents who undergo an abortion outside the state, as well as their providers and anyone else who assists them in seeking an abortion. Similarly, Texas has enacted a six-week ban on abortion with a private right of action enabling individuals to sue abortion providers and others. This has caused concerns amongst physicians in states where abortion is still legal, in terms of their legal liabilities.
As noted above, California, Oregon, and Washington have committed to providing legal protection for physicians providing care and patients coming to those states for care. Other care providers have taken a different approach. Planned Parenthood of Montana has ceased providing medication abortions to patients traveling from out of state due to concerns that patients taking the medication in their home state will be violating state law.
In 2021 the FDA authorized the medications Mifepristone and misoprostol to be prescribed via telemedicine and mailed to the patient for the termination of pregnancies of less than 10 weeks gestation. Currently, nineteen states (not including AK, CA, HI, or ID) have laws in place restricting access to such medications by mail. A Louisiana law makes “delivering, dispensing, distributing, or providing” an “abortion-inducing drug” to a pregnant person in Louisiana a crime punishable by fines and imprisonment, raising questions on how such a law will be enforced if the prescribing provider resides outside of the state. The U.S. Attorney General issued a statement advising that states cannot ban mifepristone based on disagreement with the federal government on its safety and efficacy.
How Can Physicians Protect Themselves?
At this point, there is much that is still unclear- the legal landscape around abortion is still changing both at the federal and state level, and clinical guidance is still being developed. Therefore, it is important for physicians to follow ongoing changes, look to the most authoritative sources for guidance, and know how and when to ask for assistance in specific situations. MIEC recommends the following:
- Keep up to date with developments in state and federal law:
Physicians practicing in states currently allowing abortion should continue their current practice, while remaining vigilant of any future changes in the law. However, physicians who practice in multiple states, either in person or through telehealth, should be aware of and compliant with the laws in each state in which patients are located at the time of treatment. Furthermore, physicians treating patients who travel from out of state should consider potential legal liabilities across state lines. For Idaho physicians, MIEC recommends keeping up to date on the pending state and federal legal challenges, and the expected effective dates of the current legislation in August 2022. To the extent that Idaho’s laws go into effect as written, physicians should be aware that elective termination of pregnancy within the state will be largely illegal. The most potentially complicated issue for physicians to navigate will be determining when terminating a pregnancy is allowable, and/or required, as part of emergency or life-saving treatment. As discussed, physicians should remain protected under federal law when providing treatment under the Emergency Treatment and Active Labor Act (EMTALA), but balancing EMTALA requirements with Idaho’s exceptions and applying these definitions precisely to clinical situations, in the absence of more formal guidance, may prove to be exceedingly difficult.Idaho physicians can find an excellent summary of Idaho’s abortions laws and frequently asked questions here: Idaho Abortion Laws: Frequently Asked Questions | Holland & Hart LLP (hollandhart.com)
- Follow available clinical guidance:
MIEC recommends that physicians remain vigilant of and continue to follow any formal guidance offered through the government and/or professional organizations. The American College of Obstetrics and Gynecology (ACOG) has issued multiple statements since the Dobbs decision, but there has been little clinically-specific guidance offered, most notably around the issue of how physicians should balance life-saving care with state prohibitions on abortion. On July 13, 2022, ACOG issued a statement on the clarification of EMTALA protections, in which it acknowledged that the clarification of EMTALA protections should reassure physicians that they will be protected when providing evidence-based emergency medical care, without fear of state bans on abortion. The American Academy of Emergency Physicians also released a statement in response to the Dobbs decision and is seeking to provide guidance to physicians providing emergency care.The most recent formal guidance was published by CMS on July 11, 2022; this updated guidance addresses how EMTALA applies to pregnant patients. With regards to specific conditions and treatments, CMS states the following:
“Emergency medical conditions involving pregnant patients may include, but are not limited to: ectopic pregnancy, complications of pregnancy loss, or emergent hypertensive disorders, such as preeclampsia with severe features.
Stabilizing treatment could include medical and/or surgical interventions (e.g., methotrexate therapy, dilation, and curettage (D&C), removal of one or both fallopian tubes, anti-hypertensive therapy, etc.).”
Regardless of the specific clinical guidance or state-specific laws around abortion, physicians should always carefully document patient care including history and exam findings, informed consent, and indications for treatment. Good documentation will greatly facilitate the defense of any claim by providing evidence of medical decision-making.
- Contact MIEC for Assistance:
MIEC is committed to protecting its members in this rapidly changing legal environment. Physicians who are concerned about specific situations and their associated liability risk, or who are concerned about a potential claim arising from providing reproductive health services to a particular patient, should contact MIEC for assistance.