Conducting a Post-Dobbs Risk Assessment: A Guide for Hospitals and AMCs

The Evolving Post-Dobbs Legal Landscape

In Dobbs, the Court overturned Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey, two precedents that for decades had acknowledged a federal right to abortion afforded by the US Constitution. Now, an individual’s right to access abortion services – and the scope of the government’s authority to regulate and thereby restrict access to those services – is primarily a question of state constitutional and statutory law. 

Across the country, states have acted swiftly to exercise the regulatory authority that Dobbs conferred on them. What has resulted is a 50-state patchwork, as some states have implemented abortion restrictions that Roe and Casey previously prohibited, and others have enacted new reproductive right protections exceeding those that the Court recognized in those overruled cases. In several states – namely, California, Kansas, Kentucky, Montana, Michigan, and Vermont – significant abortion policy decisions came directly from voters’ approval or rejection of ballot measures on the subject.

Meanwhile, the Biden Administration maintains that the federal government still has a robust role in “defend[ing] reproductive rights and protect[ing] access to safe and legal abortion.” Its executive actions to blunt the effect of the Dobbs decision have conflicted with some states’ efforts to limit the provision of abortion services in their jurisdictions. 

This federal/state friction is perhaps best illustrated in the pending litigation over the Emergency Medical Treatment and Labor Act (EMTALA), the federal emergency treatment law that the Centers for Medicare & Medicaid Services (CMS) interpreted as potentially requiring hospitals and physicians to provide emergency abortion services even in circumstances where state law may prohibit them. In a lawsuit that Texas filed to challenge the CMS guidance as an unlawful encroachment on its Human Life Protection Act, a federal court granted a preliminary injunction forestalling enforcement of the CMS guidance. The federal government has appealed the court’s decision.

In contrast, in another lawsuit initiated by the federal government, a court issued a preliminary injunction barring Idaho from enforcing a law restricting most abortions in that state, finding that it conflicts with EMTALA. The Idaho Legislature has filed a motion requesting the court to reconsider the injunction. 

Identifying Post-Dobbs Legal Risks and Vulnerabilities 

For hospitals and health systems, including AMCs and academic health systems, the continually evolving post-Dobbs landscape presents numerous and difficult legal questions about service delivery, operations, and finances. The actions that institutions take to navigate these questions come with their own ethical, moral, health equity, and mission implications. Thus, developing a thoughtful, strategic, and yet practical framework for navigating the post-Dobbs environment is imperative.

While the ultimate course of action that hospitals take to navigate the post-Dobbs environment will vary from organization to organization, the starting point for most is the same. That is, most hospitals must first ascertain the legal risks to which they are exposed. Once those risks are identified, then a hospital can take appropriate steps to manage such risks, consistent with its organizational risk tolerance.

Many hospitals need not start from a blank slate in conducting a post-Dobbs risk assessment. Hospitals and health systems today commonly use enterprise risk management frameworks to uncover, address, and prevent risks across their organizations. These frameworks provide an existing structure for convening diverse stakeholders, including clinical, financial, information technology, compliance, and legal representatives, to assess the multi-faceted issues affecting health care delivery in the wake of Dobbs.

A hospital’s governing board is another critical stakeholder in its post-Dobbs risk assessment. Among other functions, the board should provide direction and oversight to executive and operational staff in conducting the assessment, and ultimately will determine the hospital’s risk appetite and tolerance. In the current climate of environmental, social, and governance (ESG) factors influencing investing behavior and corporate culture, hospital boards should be aware of the external pressures and scrutiny they may face in their post-Dobbs decision-making. By keeping board members regularly informed about relevant changes in the law and advising them on the legal implications of the hospital’s risk assessment findings, legal counsel can be an important ally for those governing bodies thrust into the spotlight.    

Key Components of a Post-Dobbs Risk Assessment

This multi-part series will identify key components of a post-Dobbs risk assessment. Each article will focus on one of several risk domains that we will explore:

1. Delivery of Abortion Services and Other Impacted Services: How do post-Dobbs legal and regulatory changes impact a hospital’s delivery of abortion, contraceptive, and other potentially affected services, such as fertility services, transgender health services, and services to out-of-state patients?

2. Minor Patients: What special factors must a hospital consider in providing reproductive health or other affected services to minors?

3. Privacy: What risks arise from a hospital’s obtainment, use, or disclosure of information about a patient’s receipt of reproductive health or other affected services?

4. Medical Education, Training, and Research: To what extent do post-Dobbs legal and regulatory changes affect a hospital’s education, training, and research activities, such as physician residency programs, relating to reproductive health?

5. Workplace and Business Risks: How may post-Dobbs legal and regulatory changes impact a hospital as an employer and in other ways in which it conducts its business affairs?   

In each article, we will offer a practical checklist of questions hospitals should consider in their risk assessment. Collectively, these tools will help illuminate a path forward amidst the controversies and uncertainties following the Dobbs decision.

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.