Three Considerations for Health Care Providers After the Dobbs Decision | Blogs | Health law today

Last week the Supreme Court ruled in Dobbs v. Jackson Women’s Healthruling that the Constitution does not confer the right to abortion and reversing the precedent established by Roe vs. Wade410 United States 113, and Planned Parenthood of Southern Pa. c. Casey, 505 US 833. Health care providers who provide a full range of health care services to women, including abortion, will need to understand how Dobbs decision has an impact on the care they can provide to patients. In the absence of federal protection of a patient’s ability to obtain an abortion, providers operating in this space will need to understand the scope of state laws that apply to abortion services. Below are three key considerations for healthcare providers to consider.

1) Know the licensed scope of abortion services in the state.

Before the Dobbs decision, the Supreme Court’s precedent protected a patient’s ability to have an abortion in the first trimester of her pregnancy and allowed states to regulate abortions as long as the law did not impose an “undue burden” on the right to abortion. In the light of the Dobbs decision that removes federal protection of the right to abortion services, state law will dictate whether a patient can obtain an abortion. Healthcare providers will now need to be especially aware of the laws governing abortion services in their state. Many states, including Kentucky and Louisiana, have “trigger” laws that will go into effect immediately or shortly after the Dobbs decision, which will completely ban abortions in these states. Other states, like Wisconsin and Michigan, have “zombie” laws that were passed before Roe vs. Wadewhich could now become enforceable.

Many states have laws that restrict how an abortion can be provided, including the type of provider that can provide the service, where the service can be provided, and the scope of informed consent required for the procedure. Although many of these laws have been in place for several years, it is essential that providers in this space understand what is permitted under the law of the state where they practice and keep up with legislative developments in the state that may impose new restrictions on how to provide abortions in the state.

2) Understand the authorized means of prescribing a medical abortion via telemedicine.

The federal Food and Drug Administration (FDA) has approved drugs that will terminate early pregnancy and recently removed in-person dispensing requirements for this drug. In addition to understanding how medications can be prescribed under federal law, providers will need to know if there are any state laws that limit how medical abortion can be prescribed in the state, by particularly if the provider prescribes the medicine via a telemedicine service. meet.

In recent years, there has been an explosion of telehealth providers, many of which do not have physical clinics in a state where services are provided to patients. When services are provided via telemedicine, the law of the state of the patient’s location applies. Several states, such as Arizona and South Carolina, prohibit the prescription of medical abortion via telemedicine. Other states impose conditions on the informed consent process for an abortion, which effectively prohibit the service from being provided via telemedicine. Additionally, in some states like North Carolina, only physicians can order medical abortion, which can present a challenge for telemedicine companies that use nurse practitioners or physician assistants for patient encounters. Therefore, telehealth providers will need to know if the laws of the state where their patient is located prohibit or limit how these medications can be prescribed.

3) Beware of potential interstate challenges.

There are multiple state laws that may impact providers licensed in multiple states. Multi-state licensing is becoming more common for doctors and other providers, especially in digital health. States, such as Texas, authorize a state licensing agency to revoke the license of a doctor who performs an abortion and have set forth broad jurisdiction over conduct that can be criminally prosecuted in the state. These types of state laws could criminalize licensees or others who help a patient obtain an abortion in a state where abortion is legal. It is possible that state licensing agencies where abortion is illegal could take disciplinary action against a provider licensed in multiple states, if that provider performs a legal abortion in another state. Vendors should also be aware of collateral state licensing laws that allow a state licensing agency to initiate disciplinary proceedings against a vendor based on disciplinary action taken against that vendor by another licensing agency. state licenses.

Healthcare providers will need to assess the laws that apply to the current scope of services they provide, the terms and conditions used to provide those services, and implement changes as needed to comply with changes resulting from the Dobbs decision. We will continue to closely monitor the impacts of this decision and provide updates.

Foley is here to help you deal with the short and long term impacts as a result of regulatory changes. We have the resources to help you navigate these important legal considerations related to business operations and industry-specific issues. Please contact the authors, your Foley relationship partner, or our healthcare practice group with any questions.

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