Alaap B. Shah and Devon Minnick, attorneys in the Health Care & Life Sciences practice, contributed to the American Health Law Association’s “Top 10 Issues in Health Law 2023” issue by exploring abortion rights, restrictions, and uncertainties in the article “Reproductive Health Rights in a Post-Roe Era.” (Read the full version – subscription required.)

Following is an excerpt:

The U.S. Supreme Court’s opinion in Dobbs v. Jackson Women’s Health Organization (Dobbs) uprooted a half-century of Roe v. Wade precedent regarding abortion rights under constitutional law. The Dobbs ruling relegated the issue of abortion to the states and left individuals, families, states, regulators, and agencies, as well as the health care industry writ large, in a state of uncertainty that is unlikely to be resolved in 2023.

State Law Polarization. State laws will continue to take various approaches to mitigate or capitalize on the shifting legal landscape emanating from the overturn of Roe v. Wade. Conservative-leaning states will likely continue seeking avenues to implement near-full bans on abortion, which often may impede access to other reproductive health services, such as in-vitro fertilization. Progressive states have and will likely continue to implement new laws seeking to protect or expand access to abortion services, such as privacy protections for reproductive health information and immunities for individuals facing criminal prosecution or civil litigation arising from conduct in other states. This push for protection of reproductive health is evidenced by several states increasing their budgets to provide funding to organizations that support abortion access and to local health departments that support abortion-related services, which will likely continue into 2023, as more individuals in restrictive states travel across state lines to access legal, safe reproductive health care services. Additionally, some states’ abortion bans, such as Arizona’s, are likely to be implemented in 2023. Arizona’s Attorney General said that he would not enforce the abortion ban until “at least 45 days after a final ruling” in the litigation against the ban; currently, abortions are still being performed in Arizona. …

In 2023 and beyond, abortion rights will likely remain a strong issue for voters as states grapple with whether to implement abortion restrictions and the results of ongoing litigation. The health care industry will continue to face difficulties navigating the shifting legal landscape.

Devon discusses the article on the AHLA’s special “Speaking of Health Law” podcast, in its first episode, “Reproductive Health Rights in a Post-Roe Era,” hosted by Carol Carden, Managing Principal of Valuation Services, PYA. Topics include state efforts to restrict or protect abortion access, the conflict between state and federal law, and the impact on providers and employers. Watch the video or listen to the podcast above for the full episode.

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