Post-Dobbs Hospital Risk Assessment, Part 1: Evaluating the Impact on Delivery of Abortion Services

Abortion Restrictions Across the Country

In general, abortion restriction laws prohibit the provision of services that cause termination of pregnancy. To this extent, they apply to physicians, health facilities, and other providers of the services (or products, such as abortion-inducing drugs) that precipitate abortion. By contrast, these restrictions traditionally have not applied to – and often have contained explicit carveouts for – a pregnant woman who has an abortion, even if the abortion was illegally performed.

As of the date of this installment in our post-Dobbs risk assessment series, the vast majority of states prohibit abortion after a specified point in the pregnancy (i.e., the gestational period). Some of these prohibitions are new enactments in the wake of Dobbs. Others are long-standing restrictions, some of which were enforceable even during the era of Roe and Casey.  

On one end of the spectrum of state abortion restrictions are those total or near-total bans on abortion, with very limited exceptions. These bans were not enforceable under Roe and Casey, which held that the US Constitution protects the right to abortion before the fetus is “viable” outside the womb. Under Dobbs, however, these bans may now be enforceable. A law regulating abortion is presumed to be valid and will be upheld, the Dobbs Court ruled, as long as there is a “rational basis” to believe the law will serve “legitimate state interests,” such as the state’s interest in “respect for and preservation of prenatal life at all stages of development.”

On the other end of the prohibition spectrum are those bans that limit abortion after a gestational period of between 22 and 24 weeks, which is often associated with fetal viability. In some instances, these narrower bans were enforceable under Roe and Casey and remain so post-Dobbs. Between these two extremes are bans that limit abortion after a gestational period of somewhere between 6 and 20 weeks.

In addition to abortion bans, many states prohibit specific modalities or methods of performing an abortion. These prohibitions may include restrictions on:

• Dilation and evacuation (commonly referred to as “D&E”) abortion, which is the most common abortion method used in the second trimester.
• The use of telehealth for abortion-related services.
• “Self-managed” abortion or medication-induced abortion.

Self-managed abortion describes the process of a person inducing one’s own abortion outside of a medical setting and without the aid of medical personnel. In most self-managed abortions, a physician or other authorized provider prescribes mifepristone and misoprostol, two drugs that the US Food and Drug Administration (FDA) has approved for use together to induce abortion. A ruling is expected soon in a pending federal lawsuit that challenges and seeks the FDA’s withdrawal of that approval. (See our prior alerts about the FDA case, Alliance for Hippocratic Medicine v. US Food and Drug Administration, here, here, and here.)

Some states also prohibit abortion for certain reasons. For example, some states may restrict abortion based on sex selection, race selection, or fetal anomaly.

Exceptions to Abortion Prohibitions

States with abortion bans typically permit abortion in limited circumstances, including one or more of the following:

• The pregnancy results from rape.
• The pregnancy results from incest.
• An abortion is necessary to save the life, or protect the health, of the pregnant woman.
• The fetus has a fatal birth defect.

In some states, these circumstances are exceptions to abortion prohibitions. That means abortion may lawfully occur when exception circumstances are present. In other states, such as Idaho, the existence of one or more of these circumstances can be used only as an affirmative defense to a charge of criminal abortion. Thus, even where an abortion is necessary to save a pregnant woman’s life, the physician must perform the procedure under threat of potential criminal prosecution.

As we have discussed in previous alerts (see here and here), the availability of abortion in emergency medical circumstances is the subject of active litigation between the federal and state governments. The Biden Administration maintains that the federal Emergency Medical Treatment and Labor Act (EMTALA), which requires Medicare-participating hospitals and physicians to provide emergency treatment to patients who present to the emergency room, may require the performance of an abortion in certain emergency circumstances, regardless of any state law that would otherwise prohibit the procedure.

A federal district court in Idaho agreed with the federal government’s position and temporarily enjoined Idaho’s abortion ban from taking effect to the extent it does not permit hospitals and physicians to provide EMTALA-mandated care. By contrast, a court in Texas held that EMTALA does not require the provision of abortion services in conflict with Texas’s abortion laws and temporarily enjoined the federal government from enforcing a contrary interpretation of EMTALA there.

Impacts on Hospitals and Other Health Care Providers

Even where abortion is lawful, some states may authorize the provision of abortion services only in certain facilities and only by certain health care professionals. These include states with requirements that:

• A health care professional who performs an abortion must have admitting privileges at or otherwise be affiliated with a hospital.
• All abortions, or at least abortions after a specified gestational period, must be performed in a hospital.
• The physical spaces where abortions are performed must comply with specifications for the room size, corridor width, and/or additional facility or structural standards comparable to those for ambulatory surgical centers.
• Outpatient abortion clinics must be located within a specific distance of a hospital.

Most states require hospitals, other health facilities, and physicians providing abortions to submit confidential reports to the state. A smaller number of these states require some information about the patient’s reason for the abortion.

Additional Requirements
In addition to requirements applicable to hospitals and other health care providers, states that permit abortion during certain gestational periods may impose requirements that directly impact the patient receiving the procedure and/or the insurer or other source of payment for the procedure. These include states with requirements that:

• Consent from one or both parents must be obtained prior to a minor having an abortion.
• A waiting period must pass before the patient may have an abortion.
• The patient must undergo pre-abortion counseling.
• The abortion provider must offer or, in some states, actually perform a pre-abortion ultrasound on the patient, with some states also requiring the provider to display and describe the ultrasound image to the patient.
• State funds may not be used to pay for an abortion for a Medicaid enrollee, except when the patient’s life is in danger or the pregnancy is the result of rape or incest.

Criminalization of Abortion 

In the post-Dobbs landscape, the consequences for violating a state’s abortion laws can be serious – even criminal. Depending on the state, criminal punishment for an abortion-related offense may range from one year to life in prison. In addition to the risks of criminal penalties, health care providers in some states face the risk of civil or administrative fines and disciplinary action against their licenses for commission of an abortion-related offense.

While the penalties for noncompliance with state abortion laws fall largely on providers, they also may apply more broadly to “any person” who aids a prohibited abortion. In Nebraska, for example, a mother and daughter are awaiting trial on charges that they violated Nebraska law prohibiting abortion after 20 weeks, after law enforcement used a search warrant to obtain their Facebook messages discussing the daughter’s self-managed abortion.

Assessing the Risks

How is your hospital affected by the continually evolving post-Dobbs restrictions on and regulations of abortion services? While the risks to any facility are always unique and individualized, we offer the following checklist for your risk assessment. The more “Yes” responses, the greater the risk exposure.

This alert is part of ArentFox Schiff’s ongoing commitment to monitor the impact of the US Supreme Court’s ruling in Dobbs v. Jackson Women’s Health Organization on health care providers, employers, and businesses. For more information about the work of our Reproductive Health Task Force, click here.