Provider Liability Post-Dobbs

• July 01, 2023

• Shalyn Smith Watkins , Holland & Knight LLP

The Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization¹ settles much of the legal debate surrounding state-imposed abortion laws, while raising a host of new questions about those restrictions. In Dobbs, the High Court overturned its prior abortion caselaw, holding that the U.S. Constitution does not confer a right to abortion, and that states hold the power to regulate abortions through legislation. In the aftermath of the Dobbs decision, 14 states have enacted laws imposing near-total bans on abortion,² while more states are expected to do so in the coming months. Other states passed laws severely restricting abortions, resulting in an effective ban on access to these services, but legal challenges have so far prevented complete bans from taking effect. In contrast, some states have added new protections for women and medical providers since the Dobbs decision was released.³

The Dobbs decision and the fast-changing landscape of abortion law and access places medical providers at a crossroads. Split between their ethical and legal obligations, personal beliefs, and potential liability to themselves and their businesses, providers are faced with confusion and doubt on how to navigate the evolving regulatory landscape. This gray area leaves room for consequential and potentially dangerous interpretations that health care providers are not prepared to make. As a result, attorneys representing providers should be well versed on current state and federal laws and guidance and be prepared to offer practical advice to safeguard clients’ interests and minimize the risk of criminal and civil liability.

Given the rapidly changing laws across the country, and without precedent on their interpretation, it is unclear how these laws will be implemented. A recent example is the prohibition in many states for dispensing an “abortion-inducing drug.” These drugs have clinical indications for care that is unrelated to abortion. But state laws are not always clear on whether these medications can be prescribed in circumstances other than to induce abortion. For example, Texas law now specifically includes “methotrexate” in its definition of “abortion-inducing drug,” but then specifically excludes from its definition “a drug, medicine, or other substance that may be known to cause an abortion but is prescribed, dispensed, or administered for other medical reasons.”⁴ Although this medication’s approved usage is for treatment of arthritis and other chronic inflammatory conditions, because its off-label use is for pregnancy termination,⁵ Texas providers may be hesitant to prescribe it under any circumstances out of concern of potential legal repercussions. Doctors and pharmacists could face liability under these laws when prescribing or dispensing these medications, ultimately causing some hospitals, pharmacies, and other organizations to remove or strictly limit access to these medications.⁶ Moreover, with each passing day, the issues related to these laws get murkier. In November 2022, the U.S. Food and Drug Administration was sued in a Texas federal court over its approval of the abortion drug mifepristone more than two decades ago.⁷ The district court’s decision⁸ upending the FDA’s approval of the drug currently is under appeal at the Fifth Circuit. The Supreme Court, which temporarily blocked the lower courts’ decisions, is expected to ultimately decide the issue.

Health care providers must now interpret new laws in each state without clear guidance, and therefore, their counsel must be well equipped with resources to advise them. This article briefly summarizes pre-Dobbs provider liability, describes the current liability providers may face, and offers practical suggestions for minimizing potential liability exposure as the legal landscape continues to shift.

A Brief History of Provider Liability

Prior to Dobbs, for those performing abortion services, their liability was no different than when providing any other medical service (i.e., medical malpractice, improper billing practices, ethical licensure complaints, etc.). Because performing an abortion, subject to requirements set forth in Roe v. Wade⁹ and Planned Parenthood v. Casey,¹⁰ was legal, the biggest hurdle health professionals likely faced on a given day were protestors outside their office.

And for providers who did not perform abortions pre-Dobbs, the Religious Freedom Restoration Act (RFRA) protected their right to make such decisions based on their religious beliefs. The federal government enacted statutes that ensured providers who object to providing these services could still receive federal funding assistance.¹¹ In August 2022, the Fifth Circuit sided with Christian medical groups and providers, holding that these providers were shielded from liability under the Affordable Care Act’s (ACA’s) anti-discrimination provision for refusing to perform abortions.¹² Thus, under these conscience laws, the federal government could not require health care providers to perform abortion procedures based on anti-discrimination laws and policies.

By 2022, nearly every state had enacted conscience and RFRA-like laws that permitted individual providers and facilities to refuse to perform abortions.¹³ For example, in California, the state’s Health and Safety Code expressly protects certain health care professionals who refuse to perform abortions. Even though California allows wide access to abortion-related care, providers who do not perform abortion services do not face claims for damages, penalties, or other discipline.¹⁴ To be protected, providers must submit written notice to their facility explaining their moral, ethical, or religious reason for declining to perform these services. The state also allows religious institutions, including nonprofits and clinics, to refuse to offer the procedure without facing liability under the Health and Safety Code. Similarly in Illinois, health care personnel do not face civil or criminal liability for refusing to provide abortion services when doing so is contrary to their conscience.¹⁵ The law only requires clinicians to provide patients with information on where they may access such procedures. The law also applies to facilities that have documented conscience and ethical guidelines, mission statements, or other governing documents. Pre-Dobbs, these laws were key to navigating the rocky landscape of abortion-related care.

Provider Liability Post-Dobbs

Dobbs’ overturning of Roe and Casey has upended the legal protections for abortion rights that existed for the past 50 years, both for women seeking abortions and for those providers who offer these services. Medical providers now face new risks and liabilities that did not exist just a year ago. Those risks generally fall into four categories: general civil liability; malpractice liability; employment liability; and criminal liability. This article further discusses these issues as they are unfolding.

General Civil Liability

Health professionals and facilities may face civil liability or risk other disciplinary action in states where abortion is banned or significantly restricted. This has led many doctors and facilities to refuse to provide any abortion services, even where an exception may be present.

In Indiana, a doctor faced backlash after performing an abortion on a ten-year-old girl.¹⁶ The girl was a rape victim from Ohio, a state that, at the time, did not allow abortion after six weeks regardless of rape or incest.¹⁷ She traveled to Indiana where the procedure was still legal up to 22 weeks.¹⁸ After performing the service, the doctor was investigated by the state attorney general and referred to the state medical board for potential disciplinary action,¹⁹ highlighting the fraught landscape that providers face in the post-Dobbs era.

In Minnesota, a pharmacist is being sued in his individual capacity for refusing to provide a patient with the morning-after pill prescribed by her doctor.²⁰ The complaint argues that the pharmacist violated Minnesota’s Human Rights Act by refusing to provide the medication and seeks punitive and monetary damages.

Additionally, on May 1, 2023, the Centers for Medicare & Medicaid Services (CMS) issued a statement announcing it was investigating two hospitals for purported violations of the Emergency Medical Treatment and Labor Act (EMTALA).²¹ The investigations stem from the hospitals—one located in Missouri and the other in Kansas—not providing “necessary stabilizing care” to a patient who presented to both hospitals while experiencing an emergency medical condition because of hospital policies that prohibited health care providers from performing an abortion.²² The hospitals’ alleged refusal to provide services under these circumstances highlight the uncertainty surrounding potential civil liability post-Dobbs.

Malpractice Liability

For providers in states that restrict or ban abortions, the failure to provide medically necessary abortion-related services could amount to malpractice.²³ Likewise, providing abortion services in states that bar these procedures could potentially nullify a provider’s malpractice insurance coverage.²⁴

From a malpractice standpoint, the technical decisions and definitions that apply to abortion laws can be confusing and difficult to navigate.²⁵ For example, in a state like Alabama where fetal heartbeat laws consider the presence of detectable electrical activity as a heartbeat indicating life,²⁶ there is debate on whether that metric is accurate.²⁷ Scholars researching this area also have raised concerns that a provider may delay treatment when a fetus is alive under fetal heartbeat laws but the patient’s life is in danger, such as in an ectopic pregnancy. Delays in treatment leading to life-threatening complications or even death could result in medical malpractice lawsuits against providers.²⁸ This issue is currently at the forefront of a lawsuit in Texas where women denied abortions in medical emergencies sued the state in March 2023.²⁹ Providers must carefully document their decision making to help avoid liability exposure in these situations.³⁰ The potential for increased litigation may also impact medical malpractice rates for providers and fertility clinics nationwide.³¹

The insurance industry and persons involved in it, insurance entities of all types, less-conventional risk-bearing structures, and occupations that Roe touched must be alert to the changes wrought by Dobbs, made ready to react, and counseled on how to adapt. Attorneys will need to guide many of their clients on how they should conduct their businesses and acclimate themselves to this potentially momentous change in the insurance landscape.³²

With such uncertainty, these issues may raise medical malpractice concerns for providers in every state, not just those restricting abortions.

Employment Liability

Facilities employing providers that refuse to perform abortion services now face a more challenging legal landscape than before Dobbs. Virginia law protecting health care professional objections to performing abortion services on the basis of moral, ethical, or religious beliefs is currently at the center of a lawsuit between a nurse practitioner and CVS.³³ The nurse alleges she was fired from CVS’ MinuteClinic after informing CVS that she would not participate in abortion-related services based on her Catholic beliefs and refusing to prescribe morning-after pills.³⁴ This example underscores the new pressure employers who wish to provide abortion-related services may face in accommodating employees who wish to forego providing these services post-Dobbs.

Relatedly, employers also must be careful when selecting employer-sponsored health plans in the post-Dobbs era. Employee coverage for abortion services may depend on state insurance statutes and regulations mandating certain benefits. Plans that cover employees or members in several jurisdictions face even greater challenges because “whether or not there is abortion coverage may vary by state depending on whether the state allows, prohibits, or restricts abortion.”³⁵

Additional complexities may arise when a plan covers abortion services, but an employee resides in a state banning abortions. Several high-profile companies have announced that they will cover the cost for employees who need to travel out of state for abortions.³⁶ But those companies may face liability in states that have enacted “aiding and abetting” laws, such as Oklahoma and Texas. These laws create a private right of action to sue those who assist in the performance or inducement of an abortion.

Criminal Liability

The Dobbs decision allows states to penalize and criminalize providers for performing abortion services.

For example, under Louisiana’s near-complete ban³⁷ on abortion, abortion-related care is permissible only in rare but specifically defined circumstances where the fetus is not expected to survive pregnancy.³⁸ As a result, a pregnant woman in Louisiana was unable to receive an abortion in the state after finding out that the fetus had not developed a skull.³⁹ This condition would not allow the fetus to survive outside the womb and doctors recommended an abortion. Nevertheless, the fetus’ specific condition was not on the state’s list of acceptable conditions for the exception. Doctors were unsure of the ambiguity in the exception’s language and refused to treat the woman. If they had done so, they could have been subject to jail time and fines under the Louisiana law. The fear of potential criminal liability halted even a seemingly permissible procedure in this case and is likely doing so in other states as well.⁴⁰

Louisiana is one of several states that imposes criminal liability for abortion-related care. Providers and facilities must be aware of the specific laws in their jurisdiction.

Minimizing Liability Exposure for Providers

Despite the ongoing legal uncertainty in the post-Dobbs landscape, providers can employ the following suggestions to help limit their liability for decisions regarding abortion-related services.

Create a Task Force to Ensure Compliance with Local Laws

Many state laws banning abortions include an exception for preserving the life of the pregnant person. Uncertainties regarding these exceptions, however, have led several states, facilities, and doctors to create guidelines for applying them in practice. Medical associations encourage hospitals to form task forces to provide clarity on when and how the exceptions may apply. This guidance may also be used to assist providers in defending against future litigation.⁴¹

For providers who conduct abortion-related services as a medical necessity, carefully documenting the circumstances and obtaining the opinion of another provider are best practices that will help avoid or minimize potential liability. Note that some state laws have specific requirements for performing these emergency procedures, and that employers may also have internal policies that should be considered.

Create Clear Policies Explaining the Decision Not to Provide Abortion-related Services

Facilities that have ceased providing abortion-related services should make their policies clear for all patients. This may prevent prospective patients from seeking care at the facility altogether and avoid the need to deny services at the point of care.

On the other hand, providers in facilities that allow abortions should be clear on whether they provide abortion-related services. In states where protections exist under conscience laws, providers must understand their obligations under these laws. They may be required to notify their employer in advance or provide a list of alternative providers for patients.

If a provider fears termination of employment or civil liability for failing to perform an abortion, they should seek legal counsel as soon as possible. The attorney should consider all administrative law and licensure issues, civil rights issues, malpractice concerns, and employment discrimination claims available to the provider.

Health Care Employers Must Choose Benefit Plans Carefully and Implement Conscience Protocols

Employers must stay up to date on state requirements for health insurance plans and the coverage requirements for abortion-related care.⁴²

Employers should also be proactive about creating protocols for employed providers who decline to perform abortion-related services and determine what options are available before deciding to terminate a provider for this refusal.

Stay Up to Date on Your State’s Criminal Laws

Criminal liability statutes in various states also contain provisions for aiding and abetting an abortion.⁴³ Therefore, a provider in those states should be careful before recommending alternative providers to a patient for abortion-related services.

Shalyn S. Watkins is a Senior Associate in Vedder Price’s Los Angeles Office. She represents providers, manufacturers, suppliers, and funds in mergers and acquisitions of health care enterprises; and provides operational and regulatory guidance to clients on various topics including HIPAA, the Corporate Practice of Medicine, Medicare and Medicaid compliance, and FDA regulatory requirements. Prior to joining private practice, Shalyn served as an Assistant Attorney General for the State of Ohio in the Health and Human Services Section; Assistant Regional Counsel for the United States Department of Health and Human Services; and Senior Legal Counsel at a health care technology company.

AHLA would like to thank the leaders of the Health Care Liability and Litigation Practice Group for contributing this feature article: Lindsey Lonergan, Navicent Health Inc (Chair); Oren Rosenthal, SCAN Health Plan (Vice Chair—Education); Mackenzie Wallace, Thompson Coburn (Vice Chair—Education); Elizabeth Harris, Epstein Becker & Green PC (Vice Chair—Education); Sarah Hellmann, Husch Blackwell LLP (Vice Chair—Member Engagement); and Shalyn Watkins, Vedder Price (Vice Chair—Education).

ARTICLE TAGS

• Health Care Liability and Litigation Practice Group
• Reproductive Health Law Hub
• Patient Care Liability and Litigation