Conflicting state laws and 'unpredictable' enforcement await providers in post-Roe America

With Friday’s Supreme Court decision to overturn Roe v. Wade spurring new restrictions and penalties across numerous states, legal experts say it’s vital for health systems and other provider organizations to immediately review their operations and prepare for potential enforcement by state prosecutors.    

Even diligent healthcare organizations in these states will have to contend with an “unpredictable” enforcement environment thanks to the patchwork of competing regulations on cross-border abortion care and older pre-Roe abortion bans states could choose to enforce, they said.   

“Any provider organization whose operations touch family planning services in any way, including providers, those that facilitate provider activities, investors, payers, employers that provide family planning or medical travel benefits, and health plan service providers, should immediately review their services, geographic footprint, corporate structure and organizational priorities,” Stacey Callaghan, a partner with McDermott Will & Emery who counsels healthcare entities, told Fierce Healthcare.

“If these organizations have not already put in place a plan to address post-Roe restrictions arguably impacting their operations, they should consult with counsel as soon as possible to ensure they understand the landscape of relevant laws and attendant risks and employ any appropriate risk mitigation strategies,” she said.

Alongside broader concerns about access to care and maternal health, American Hospital Association General Counsel Melinda Hatton said the organization expects the ruling to directly affect hospitals and health systems’ cross-state care practices, emergency treatment obligations and medical education.

Thirteen states already or will soon have active laws restricting or banning abortions, sometimes expanding penalties to those who go out of state for a procedure or to those who aid the individual seeking an abortion.

More than half of all states are expected to pursue new restrictions due to the top court’s ruling.

At the same time, leaders in legal abortion states such as California, Washington, Oregon, Massachusetts and Minnesota have committed to protecting patients and providers from other states’ enforcement efforts, such as extradition or revoked professional licenses.

White House officials have also warned states not to restrict healthcare services from federal organizations and pledged efforts to expand reproductive care as much as possible.

Sarah Hall and Elena Quattrone, healthcare attorneys at Epstein Becker & Green, not speaking on any entities’ position in particular, told Fierce Healthcare that healthcare organizations operating across state lines will need to keep a close eye on local laws and accept an “unknown level of enforcement risk” within the states with a ban.

“Given that enforcement is subject to prosecutorial discretion, which will vary widely from state to state, this unprecedented change will result in unpredictable enforcement,” Hall and Quattrone said in an email statement. “Many such laws are written broadly, creating liability for aiding and abetting an abortion, adding to uncertainty. The stakes are high in numerous states, such as the Texas law passed in 2021 … providing for $100,000 in penalties and criminal charges.”

The Epstein Becker & Green attorneys said it’s “likely” medical providers will be among the first targets for states’ enforcement efforts and that they expect some states to take action on provider licensure. The attorneys said certain states may go on to target patients and, potentially, “entities with a less direct connection to the abortion procedure” such as insurers and pharmacies.

Travel to states without an abortion ban for a procedure is also an area of ambiguity going forward. McDermott’s Callaghan said the firm expects law enforcement “in at least some restrictive states will try to take action to prevent as many abortions as they can—even those that aren’t entirely contained within their borders.”

Hall and Quattrone said the constitutionality of state-imposed travel restrictions will likely be a focus of future litigation between the federal government and states, particularly in light of statements from U.S. Attorney General Merrick Garland directly opposing out-of-state enforcement of the restrictions.

Local restrictions impact women’s health services

For now, multistate health systems told Fierce Healthcare they’re not aiming to defy any legislation.

North Carolina-based Atrium Health, which also operates in South Carolina, Georgia and Alabama and aims to merge with the Midwest’s Advocate Aurora Health, said, “we will always follow the law. As new laws are adopted or enforced, we want women who need help to know that they are not alone and we are here to help.”

Kaiser Permanente, which operates across eight primarily pro-abortion states and the District of Columbia, said it “will continue to provide the full range of comprehensive, integrated women’s health services including prenatal, maternity, family planning, contraception and pregnancy termination services consistent with our obligations to our members, patients, employees, customers and all applicable laws.”

Responses from single-state organizations with new or potential upcoming restrictions similarly signaled adherence to the law, albeit sometimes with an edge of frustration.

Madison, Wisconsin-based UW Health said in a statement that losing access to abortion and other reproductive health care “will be felt everywhere in Wisconsin, particularly by underserved rural areas or marginalized populations that are disproportionately affected by barriers to safe and effective reproductive healthcare.

“While reverting to a 173-year-old state law on abortion will create some legal uncertainties, we recognize that this court decision has effectively banned abortions in Wisconsin except to save the life of the mother, and UW Health will continue to comply with the laws related to reproductive healthcare,” the organization said.

Leadership from University of Michigan and Michigan Medicine noted Friday that abortion care “remains legal in Michigan while challenges to various state-law criminal statutes continue to proceed. As such, reproductive education and care will continue at the organizations 'based on Michigan court rulings,'” the health systems said.

Elsewhere in Michigan, the state’s largest provider already stumbled in its attempt to comply with local restrictions.

Local media reported BHSH System—a 22-hospital entity recently formed from the merger of nonprofit systems Beaumont Health and Spectrum Health—informed staff Friday it would be limiting abortions to those needed to save a mother’s life, in accordance with a state abortion law passed in 1931. The organization’s prior policy allowed for medically necessary abortions—not elective abortions—roughly 60 of which had been performed systemwide during 2021.

Hours later, President and CEO Tina Freese Decker reportedly sent another email to staff reverting back to its policy of medically necessary abortions and said in a public statement released Sunday that its decision to forego the 91-year-old law had the backing of its board.

“At present, the current legal landscape regarding abortion in our state is unclear and uncertain,” the system said. “We are aware of the 1931 Michigan law. However, given the uncertainties and confusion surrounding its enforcement, until there is clarity, we will continue our practice of providing abortions when medically necessary.

“We continue to provide care for women’s health, including reproductive needs. We will support our physicians and patients through a multidisciplinary, local committee as they navigate this challenging landscape. We urge Michigan courts to bring clarity as quickly as possible.”