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Now that Dobbs has become the law, what are the practical ramifications of this historic case for health care in the United States? We will explore some of the initial practical considerations immediately following the decision, and update as guidance and legislation warrant.
There is no doubt that many health care providers across the country envision the profound impact that Dobbswill affect their ability to provide reproductive health care services to their patients. With the reversal of a woman’s federal constitutional right to an abortion, health care providers will not only have to navigate state laws affecting women’s reproductive health rights in the states where they practice, but they will also need to know if the law of a patient’s home state limits their ability to provide reproductive health care to those patients. While the jurisdictional reach of these laws is highly debatable, it remains to be seen how aggressive some states will become.
Unsurprisingly, at the exit of Dobbs decision, President Biden, the United States Attorney General (Merrick Garland), the American Hospital Association, the American Medical Association, the Association of American Medical Colleges, the Centers for Medicare and Medicaid Services, and the American College of Surgeons, to name a few, have issued strong statements denouncing Dobbs decision. The consensus of these leaders and healthcare organizations is that Dobbswrongfully interferes with a woman’s right to comprehensive reproductive health care and will have a disproportionate impact on economically marginalized populations who already have difficulty accessing health care. While reproductive rights advocates seem fully engaged and motivated to find a way to preserve women’s right to abortion, health care providers now face a quagmire of legal issues. Here are some preliminary questions for healthcare providers, pharmacies and medical device manufacturers to consider during this volatile time in the law:
- Check with your attorney to see if there are any state laws that limit or completely restrict your ability to counsel or provide reproductive health care services. If you are a pharmacy or medical device manufacturer that ships Federal Drug Administration (FDA)-approved products to a state with restrictive reproductive laws, the Federal Interstate Commerce Clause may anticipate the applicability of such restrictive state laws. According to Merrick Garland, the United States Attorney General, “[s]States cannot ban mifepristone because of a disagreement with the FDA’s expert judgment on its safety and efficacy.” However, such statements do not mean that manufacturers of hormonal drugs and other drugs that work as emergency contraception or as abortifacients will not be subject to civil suits or criminal charges in some states.
- Determine if your patient’s health insurance plan covers the particular reproductive health care services the patient needs. As noted here, although self-funded plans, with few exceptions, are unlikely to be subject to state laws prohibiting abortion or other reproductive services, health insurance plans are likely to be subject to state laws prohibiting abortion or other reproductive services. be subject to the laws of the state in which they operate, whether the state prohibits abortion or requires insurance to cover the cost of abortion, as Maryland has done. Currently, 16 states cover abortion procedures under their state Medicaid plans. At this time, it is not known whether the Centers for Medicare & Medicaid Services (a federal agency that administers the Medicare program and works in partnership with state governments to administer Medicaid, the Children’s Health Insurance program, and health insurance portability standards) will require all states that participate in Medicaid to cover abortion procedures, including emergency contraception or abortifacients.
- It is also currently unclear whether the Secretary of Health and Human Services will enact new rules under the Emergency Medical Treatment and Active Labor Act for Medicare-participating hospitals regarding the provision of certain emergency reproductive services, for example when a woman has been raped, has had a miscarriage, or has an ectopic pregnancy or a septic uterus. Please note that many drugs used to induce abortion are also prescribed for miscarriages.
- Check your state’s privacy laws, as some states, such as Connecticut, have or will enact laws that prohibit (with limited exceptions, for example, reporting child abuse) a “covered entity” by under the Health Insurance Portability and Accountability Act (HIPAA) to disclose any information regarding the provision of reproductive health services without the specific written permission of the patient or their legal representative. Therefore, while a disclosure may be permitted under HIPAA, state law that further restricts the disclosure of reproductive health information must be adhered to with respect to patient privacy. . In addition, some states will prohibit authorities from cooperating with out-of-state action (eg, issuance of a subpoena) relating to reproductive health services in certain circumstances. Please also note that the enactment of state laws relating to reproductive health services may require a change to the Notice of Provider Privacy Practices under HIPAA.
- Some states may also enact laws that protect health care providers and patients who travel to other states to obtain abortions in their state from liability in the state in which they provided or received the abortions. reproductive health services, including further the right to recover damages and costs in connection with such action. For example, in Connecticut, health care providers cannot be extradited to other states in connection with requests for reproductive health services.
As new guidelines are released, we will update our Dobbs Business Intelligence Resource Center page.
The content of this article is intended to provide a general guide on the subject. Specialist advice should be sought regarding your particular situation.
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