Post-Dobbs Hospital Risk Assessment, Part 2: Impacts Beyond Abortion

Contraception

Contraception refers to methods to prevent pregnancy, such as birth control pills, condoms, or intrauterine devices. It works by blocking fertilization of an egg, as well as implantation in the uterine wall. Although many are administered before or during sexual activity, some contraceptives, such as emergency contraceptives, are administered after sexual intercourse. Abortion, by contrast, is the termination of a pregnancy.

In many states, hospitals are legally required to provide information about and/or dispense, upon the patient’s request, emergency contraception to sexual assault victims who present to the hospital’s emergency room. Some hospitals also may prescribe or dispense birth control drugs for postpartum use by patients who deliver newborns at their facilities or to patients at outpatient obstetrics/gynecology and primary care clinics. Other hospitals, however, may decline to provide contraceptive services based on the tenets of an affiliated church or religious institution, such as the Ethical and Religious Directives for Catholic Health Care Services in the case of Catholic-affiliated hospitals.

The US Supreme Court has recognized a federal constitutional right to access contraception since the 1965 case of Griswold v. Connecticut. The three dissenting Justices in Dobbs noted that the “right to terminate a pregnancy arose straight out of the right to purchase and use contraception.” The dissenters warned that, in light of the majority’s overruling the abortion right cases Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey, “no one should be confident that this majority is done with its work.” The Dobbs majority pushed back against that notion, explaining that the right to abortion uniquely involves “potential life,” which the state has an interest in protecting. “Nothing in this opinion,” the majority assured, “should be understood to cast doubt on precedents that do not concern abortion.”

Similar to the dissenters in the Dobbs decision, some observers have suggested that the broad scope of abortion restrictions enforceable post-Dobbs could extend to birth control drugs, including emergency contraception. In Missouri, for example, one hospital system stopped providing emergency contraception after the release of the Dobbs decision because of ambiguity in the state’s abortion ban, prompting the state’s Attorney General to clarify that the law did not prohibit contraceptives. In Mississippi, however, a group of nurse examiners sought, but never received, post-Dobbs guidance from that state’s Attorney General as to whether the state’s abortion ban restricted the provision of emergency contraception to patients in need of care following sexual assault.

The ongoing litigation in Alliance for Hippocratic Medicine v. FDA has further heightened concerns about post-Dobbs access to reproductive health drugs regulated by the US Food & Drug Administration (FDA). This case involves a challenge by a group of physicians and physician organizations to the FDA’s approval of mifepristone and misoprostol — two drugs used together to end an early pregnancy. After a federal district court in Texas ordered the FDA to withdraw its approval of the abortion drugs — the first time a court has ever ordered the FDA to withdraw a drug approval — the Supreme Court intervened on April 21, 2023, to stay the district court’s ruling until a lower federal appeals court rules on the merits. Should the litigants further appeal to the Supreme Court, that stay will continue in effect until the Supreme Court’s disposition of the case. If the Supreme Court eventually agrees to hear the case and rules in the plaintiffs’ favor, some critics contend that the FDA’s approval authority over a wide range of drugs, including birth control pills and emergency contraception, might be vulnerable to attack by litigants whose legal standing is largely based on their philosophical opposition to such drugs.

To the extent Griswold continues to protect a constitutional right to access contraception, the enforceability of post-Dobbs contraceptive restrictions is dubious. Nevertheless, Dobbs has spurred actions to maintain access to both contraception and abortion.

On July 13, 2023, the FDA approved the first-ever birth control pill to be available without a prescription. The development follows an announcement by FDA in December of 2022 that the labeling and patient information requirements for Plan B One-Step, the levonorgestrel pill for emergency contraception, will be revised to clarify that the contraceptive does not function like an abortifacient drug. As now revised, the contraceptive is described as “work[ing] before release of an egg from the ovary” — that is, before fertilization or implantation. In effect, the modification insulates Plan B and generic versions of the pill from state restrictions on abortifacients.

At the state level, post-Dobbs legal protections for the right to contraception are also emerging. In the 2022 midterm elections, voters in California and Michigan adopted reproductive freedom amendments to their state constitutions that explicitly codify a right to contraception. Other states have passed legislative measures to expand access to contraceptives. For example, some states, including Indiana, New Jersey, and New York, have enacted legislation that gives pharmacists greater authority to prescribe or dispense birth control pills and other hormonal contraceptives. These laws could expand access to contraceptives, including at hospital-affiliated outpatient pharmacies.

Fertility Medicine

Fertility medicine comprises the provision of medical and supportive services to individuals who desire to become pregnant. This area of reproductive health care may include diagnostic testing, fertility medications, and monitoring and support during fertility treatments, such as in vitro fertilization (IVF), intrauterine insemination, and other procedures. Some hospitals operate outpatient clinics that specialize in these services.

In the wake of Dobbs, the adoption and enforcement of so-called “personhood” laws could have far-reaching impacts on fertility medicine providers. These laws recognize a fetus or embryo as a person with legal rights and protections preceding birth. Under Georgia’s Living Infants Fairness and Equality (LIFE) Act, for example, an unborn child is eligible for child support payments and tax exemptions on the pregnant woman’s state income taxes as soon as embryonic cardiac activity can be detected, typically around the sixth week of pregnancy. Although only a handful of states have enacted personhood laws that apply broadly in various criminal and civil contexts, other states may follow suit, finding support in the Dobbs Court’s observation that states have discretion to pass laws to promote “respect for and preservation of prenatal life at all stages of development[.]”

One potential implication that follows from legal personhood is that an abortion could constitute a homicidal act. Another is that the destruction of an embryo outside the womb could be a crime. The latter scenario is a unique liability risk that personhood laws could pose to hospitals that perform IVF.

IVF generally involves the retrieval and fertilization of several eggs, at least one of which is transferred in embryonic form into a patient’s uterus. While egg retrieval is commonly performed safely in outpatient facilities, some higher-risk patients may undergo egg retrieval in a hospital operating room, where they may receive additional anesthesia, special monitoring, or supportive care. If the procedure is successful, the patient may direct the facility to dispose of the unused embryos.

But, if the state where the facility operates has a personhood law recognizing an embryo as a legal person, would the intentional destruction of an IVF patient’s embryos amount to murder? Even if the facility preserves the unused embryos, it still might bear liability risk for failing to prevent their inadvertent destruction through proper storage and maintenance practices.

Hospitals that perform IVF could face additional legal jeopardy to the extent they must perform an abortion to remediate an unsuccessful IVF procedure. Inherent risks of any pregnancy, including IVF-facilitated pregnancy, include miscarriage (the spontaneous loss of the pregnancy) and ectopic pregnancy (the growth of a fertilized egg outside the uterus, typically in the fallopian tubes). The extent of these risks depends on one’s age, medical history, and other circumstances. Following some miscarriages, abortion may be necessary to expel the embryonic or fetal tissue. Similarly, abortion is necessary to treat an ectopic pregnancy, as the embryo cannot be carried to full term. Although abortion in both of these instances occurs in the context of a patient seeking to become pregnant, the facility performing the operation nevertheless must consider whether any applicable laws prohibit or regulate the abortion.

In Georgia, for example, abortion could occur lawfully in these circumstances because the state’s LIFE Act explicitly defines abortion not to include removal of an ectopic pregnancy or removal of embryonic or fetal tissue following a “spontaneous abortion,” which is defined to include miscarriage. In other states that prohibit some or all abortions post-Dobbs, an IVF-related abortion may be specially permitted on the ground that the abortion is medically necessary to save the life or preserve the health of the patient.

Gender-Affirming Care

Gender-affirming health care encompasses various medical services and treatments for individuals who identify as transgender, non-binary, or gender-nonconforming. It includes physical and mental health care services, such as hormone replacement therapy, gender-affirming surgeries, and psychotherapy, that help individuals align their physical bodies with their gender identity. Some hospitals, including pediatric specialty hospitals, may provide these services at clinics that specialize in treating transgender youths or other transgender populations. Navigating reproductive health issues — for example, a transgender male’s decision to undergo a hysterectomy (surgical removal of all or part of the uterus and sometimes the ovaries and/or fallopian tubes) — is an important component of the care that these facilities provide.

In contrast to abortion and contraception, the Supreme Court has not decided the question of whether there is a constitutional right to gender-affirming care. Over the past two decades, however, the Court has issued landmark rulings expanding legal protections for LGBTQ+ individuals, including in the cases of Lawrence v. Texas and Obergefell v. Hodges. Lawrence established that the US Constitution protects the right of same-sex individuals to engage in private, consensual sexual acts. More recently, Obergefell solidified the constitutional right of same-sex individuals to marry. In Dobbs, the dissent accused the majority of undermining these decisions, emphasizing that the rights they safeguarded, like the rights to abortion and contraception, were “all part of the same constitutional fabric, protecting autonomous decision-making over the most personal of life decisions.”

Irrespective of Dobbs’ constitutional implications, the parallels between abortion care policy and transgender care policy post-Dobbs are strikingly similar. Since release of the Dobbs decision, more than a dozen states have passed legislation imposing restrictions on the provision of certain gender-affirming treatment, such as puberty blockers and surgical interventions, to minors. Many of these states are the same ones that have enacted or enforced post-Dobbs abortion restrictions. By the same token, some states that have attempted to preserve or expand access to abortion in the aftermath of Dobbs have also taken comparable actions to safeguard access to gender-affirming care.

The nexus between abortion policy and transgender care policy — and the contrasting approaches states are taking — is exemplified by recent legislative measures in Nebraska and Oregon. In Nebraska, legislators amended a bill, the “Let Them Grow Act,” which the governor later signed, to include both a ban on certain gender-altering procedures for minors and a ban on abortions after 12 weeks of pregnancy. Oregon, by contrast, passed a bill, House Bill 2002, that attempts to protect access to both reproductive and gender-affirming health services by, among other things, prohibiting adverse action by a malpractice insurer against a health care provider for providing any such services and prohibiting licensing boards from suspending or revoking a license solely because a health care practitioner provides any such services.

Assessing the Risks

Different service offerings create different post-Dobbs risk levels and legal monitoring needs for hospitals. The type of services a hospital may offer depends on various factors, including whether the service is mandated by law, resource availability, and affiliation with a religious institution. While many hospitals commonly make emergency contraception accessible to sexual assault victims in the emergency room, for example, only select facilities may have the capabilities to provide inpatient or outpatient specialty services in the areas of fertility medicine or gender-affirming care. For hospitals that provide fertility medicine treatment, the onsite or offsite storage of embryos is a distinctive risk factor. For hospitals that provide gender-affirming care services, the provision of such services to minors may pose a relatively higher legal risk than providing such services to adults. Ultimately, each hospital should incorporate these risk factors, as applicable, into the risk management, compliance, and governance oversight operations distinct to its organization. 

How is your hospital affected by the continually evolving state of post-Dobbs restrictions on and regulations of abortion and other clinical services related to reproductive health? While the risks to any facility are always unique and individualized, we offer the following checklist for your risk assessment. In general, the more “Yes” responses, the more potential risks may be at stake.

Assessing the Risks

For prior installments in ArentFox Schiff’s ongoing Post-Dobbs Hospital Risk Assessment series, see:

• Conducting a Post-Dobbs Risk Assessment: A Guide for Hospitals and AMCs
• Post-Dobbs Hospital Risk Assessment, Part 1: Evaluating the Impact on Delivery of Abortion Services

This alert is part of ArentFox Schiff’s ongoing commitment to monitor the impact of the 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.