State Attorneys General on the Abortion Frontlines

Foley Hoag LLP - State AG Insights
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Foley Hoag LLP - State AG Insights

In the wake of the Supreme Court’s ruling in Dobbs v. Jackson Women’s Health Organization, state attorneys general are, not surprisingly, joining the frontlines of the ensuing state-by-state debate on abortion rights.  Consider two opposing examples from recent weeks.  In early July, Massachusetts Attorney General Maura Healey issued a broad consumer advisory regarding so-called crisis pregnancy centers in Massachusetts, arguing that such facilities are frequently not licensed medical facilities and may offer advice that is inaccurate or misleading.  Besides warning consumers, the advisory makes clear Healey’s intentions to utilize state laws against misleading or deceptive advertising to the fullest when it comes to pregnancy care.

On the other end of the spectrum, Texas Attorney General Ken Paxton in mid-July filed a lawsuit in federal court opposing efforts by the Biden administration to utilize the Emergency Medical Treatment and Labor Act (“EMTALA”) to protect abortion access.  Paxton’s lawsuit targets the Biden administration’s July 11, 2022 guidance to healthcare providers noting that EMTALA requires hospital providers to offer stabilizing medical treatment in emergencies.  The guidance explains that abortions and similar procedures may be indicated as stabilizing treatment in cases of ectopic pregnancy, complications of pregnancy loss, or emergent hypertensive disorders, and provides that “when a state law prohibits and does not include an exception for the life and health of the pregnant person […] that state law is preempted by EMTALA.”  In his usual flamboyant style, Paxton accuses Biden of “attempt[ing] to use federal law to transform every emergency room in the country into a walk-in abortion clinic,” and repeatedly refers to the EMTALA guidance as an “abortion mandate” administered by “appointed bureaucrats.”

That Healey and Paxton part ways on abortion (and many other issues) is hardly news, and it is hardly unusual for state attorneys general to marshal political support by issuing advisories and filing lawsuits based on the hot-button issues of the day.  But what differs here is that Healey, Paxton, and their other state counterparts are not going to be merely trying to score political points from the sidelines; rather, they are likely to be in the center of the abortion debate as the Biden administration tests the limits of federal interventions under existing law following the Dobbs decision.

That debate will play out not only in familiar areas like consumer protection, as invoked by Healey’s advisory, but also in less-obvious but important ways.  Take Massachusetts’ newly passed reproductive rights law, for example, which, in addition to addressing insurance coverage, takes on a host of issues related to law enforcement and its connection to efforts to clamp down on abortion in other states.  The law addresses recognition of foreign judgments, provision of abortion-related information to investigators in other states, and extradition of individuals providing or receiving reproductive health care.  These law enforcement issues will define the unsettled and rapidly-changing landscape of state laws that will, on one hand, attempt to stop individuals from travelling to receive health care and, on the other, protect individuals seeking legal healthcare in places like Massachusetts.  As the states’ top law enforcement officers, state attorneys general will be central in that fight.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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