...the starting point for any provider is to understand the law of the state in which they practice or operate, along with identifying the law of the state wherein the patient resides.
Joan W. Feldman is the chair of Shipman & Goodwin LLP’s Health Law Practice Group. She couples her healthcare experience and legal expertise to serve as counsel to hospitals, health systems, academic medical centers, and a variety of other community-based healthcare providers.
In this JD Supra exclusive, Feldman shares why she recently led the firm’s establishment of its Dobbs Decision Resource Center days after the issuance of the Supreme Court’s decision in Dobbs v. Jackson Women's Health Organization, No. 19-1392, 597 U.S. ___, 142 S.Ct. 2228 (2022).
Two months post-Dobbs, she shares her insights and her predictions for the future of reproductive health law issues.
What are the practical implications of Dobbs for healthcare providers and others?
The practical implications of Dobbs are far-reaching, but the starting point for any provider is to understand the law of the state in which they practice or operate, along with identifying the law of the state wherein the patient resides. We are currently seeing a wide spectrum of laws ranging from laws that consider the performance of an abortion criminal to laws that provide liability shields and other protections for providers and patients, such as laws that prevent the extradition of the healthcare provider or the disclosure of reproductive health information.
...the federal government is using its status as a governmental payer to preempt the laws of the state that restrict or ban abortion
On a federal level, we are witness to the Biden Administration’s efforts to employ federal laws to require providers to deliver reproductive health services, such as stabilizing treatment for pregnant women who may require termination of their pregnancy to prevent grave harm under the Emergency Medical Treatment and Labor Act (EMTALA). In essence, the federal government is using its status as a governmental payer to preempt the laws of the state that restrict or ban abortion.
There are many issues that healthcare providers and others must be mindful of in this post-Dobbs period. For example:
- The legal ramifications of treating women from a state, which either bans or restricts abortion;
- The mitigation of corporate and or board liability with respect to laws that impact reproductive healthcare services;
- Professional liability insurance coverage for reproductive healthcare services providers;
- Privacy and security issues relating to the provision of reproductive health services;
- Employee benefits and employment law issues;
- Fund development issues relating to the provision or lack of reproductive healthcare services;
- Health benefit plan coverage issues relating to reproductive healthcare services; and
- The mailing or delivery of reproductive healthcare drugs and or products.
What is the Dobbs Decision Resource Center?
Since the Supreme Court’s decision in Dobbs on June 24, 2022, my colleagues and I have endeavored to keep our clients informed regarding legal developments post Dobbs. The Dobbs Decision Resource Center offers guidance regarding the practical implications of the decision on health law, employee benefits and employment law, privacy and cybersecurity, as well as First Amendment considerations and other practical ramifications. Moreover, the decision represents a potential bellwether for many other constitutionally protected privacy rights. We are closely monitoring any such developments.
The resource center is a collaboration among various lawyers in several practice areas at Shipman including Damian Privitera, Marc Lombardi, Marc Esterman, Vincenzo Carannante, Julie Jaquays, Matthew Gibbons, Kelsey Scarlett, Kelly Hathorn, Peter Murphy, Daniel Schwartz, Tom Mooney, Jaime Welsh and others.
What are providers likely to encounter with respect to changes in healthcare coverage?
State governments have found multiple ways to limit insurance coverage of abortion, including through bans on abortion coverage in public employees’ insurance policies. Several states have restricted abortion coverage in other private health insurance plans.
While these coverage restrictions on private health plans are in place in half of the states, other states have taken steps to protect abortion access and affordability by requiring insurance plans to cover abortion. The laws in these states either require abortion coverage or require coverage if a health plan includes coverage for prenatal care.
Of course, because the Hyde Amendment prohibits the use of federal funds for abortion, except in cases of life endangerment, rape or incest, government-funded healthcare services must be carefully navigated. As a workaround, some states that participate in Medicaid are using only their state funds to cover the costs of abortion.
What factors could lead to criminal charges against employers involved in abortion care?
The potential for criminal charges against employers involved in abortion care will vary from state to state. Under the law of corporate criminal liability, corporations are only liable for the acts of employees when employees are acting within the scope and nature of their employment and benefit the corporation.
To hold a corporation liable for the acts of its employees, a court must impute the intent of the employees to the corporation. Healthcare providers who provide abortion services will need to review their professional liability and directors’ and officers’ liability coverage to make sure they have necessary coverage protection.
What are your predictions about litigation and policies related to the Dobbs decision?
The laws regarding reproductive healthcare services are rapidly evolving, and we expect to see more federal agency guidance, more preliminary injunctions, and more state criminal prosecution of healthcare providers.
To mitigate risk, healthcare providers will need to balance their care for their patients with compliance with the applicable laws. Unfortunately, it may be some time before the fallout from Dobbs is fully understood and the many legal questions will be answered.
How did you come about practicing health law?
I don’t recall a time when I wasn’t interested in healthcare. Before attending law school, I worked as a nurse and my family is full of physicians, including my husband and two children. One of the benefits of being a former healthcare provider is that I received firsthand knowledge about the workings of a healthcare system, which allows me to advise my clients at a level that is helpful to them.
Connect with Joan Feldman on LinkedIn.