Sarah M. Hall and Elena M. Quattrone, attorneys in the Health Care & Life Sciences practice, in the firm’s Washington, DC, office, were quoted in Fierce Healthcare, in “Conflicting State Laws and 'Unpredictable' Enforcement Await Providers in Post-Roe America,” by Dave Muoio.
Following is an excerpt:
With Friday’s Supreme Court decision to overturn Roe v. Wade spurring new restrictions and penalties across numerous states, legal experts say it’s vital for health systems and other provider organizations to immediately review their operations and prepare for potential enforcement by state prosecutors.
Even diligent healthcare organizations in these states will have to contend with an “unpredictable” enforcement environment thanks to the patchwork of competing regulations on cross-border abortion care and older pre-Roe abortion bans states could choose to enforce, they said. …Thirteen states already or will soon have active laws restricting or banning abortions, sometimes expanding penalties to those who go out of state for a procedure or to those who aid the individual seeking an abortion.
More than half of all states are expected to pursue new restrictions due to the top court’s ruling.
At the same time, leaders in legal abortion states such as California, Washington, Oregon, Massachusetts and Minnesota have committed to protecting patients and providers from other states’ enforcement efforts, such as extradition or revoked professional licenses.
White House officials have also warned states not to restrict healthcare services from federal organizations and pledged efforts to expand reproductive care as much as possible.
Sarah Hall and Elena Quattrone, healthcare attorneys at Epstein Becker Green (EBG), not speaking on any entities’ position in particular, told Fierce Healthcare that healthcare organizations operating across state lines will need to keep a close eye on local laws and accept an “unknown level of enforcement risk” within the states with a ban.
“Given that enforcement is subject to prosecutorial discretion, which will vary widely from state to state, this unprecedented change will result in unpredictable enforcement,” Hall and Quattrone said in an email statement. “Many such laws are written broadly, creating liability for aiding and abetting an abortion, adding to uncertainty. The stakes are high in numerous states, such as the Texas law passed in 2021 … providing for $100,000 in penalties and criminal charges.”
The EBG attorneys said it’s “likely” medical providers will be among the first targets for states’ enforcement efforts, and that they expect some states to take action on provider licensure. The attorneys said certain states may go on to target patients and, potentially, “entities with a less direct connection to the abortion procedure” such as insurers and pharmacies. …
Hall and Quattrone said the constitutionality of state-imposed travel restrictions will likely be a focus of future litigation between the federal government and states, particularly in light of statements from U.S. Attorney General Merrick Garland directly opposing out-of-state enforcement of the restrictions.
