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On June 24, 2022, the United States Supreme Court issued its
opinion on Dobbs v. Jackson Women’s Health
Organization, No. 19-1392 (2022), holding that the United
States Constitution provides no basis for a right to abortion. In
its opinion, the Court further states that the right to abortion is
not in the text of the Constitution, not a part of this
nation’s fundamental history or concept of ordered liberty,
that abortion restrictions are subject to rational basis review,
and that the authority to regulate abortions lies with the 50
individual states. This decision, which is consistent with the draft opinion leaked in May, overrules
both Roe v. Wade (1973) and Planned Parenthood v. Casey
(1992), which have served as precedent on abortion issues
and rights for the past 50 years.
The consequences of this ruling are both immediate and
Thirteen States – Arkansas, Idaho, Kentucky, Louisiana,
Mississippi, Missouri, North Dakota, South Dakota, Tennessee, Utah,
Texas, Oklahoma, and West Virginia – have “trigger
laws” which make abortion illegal in these states upon the
overturn of Roe. The timeline for these “trigger
laws” to take effect varies between states.
- Some states’ trigger laws went into effect immediately
– South Dakota, Utah, Missouri, Oklahoma, Kentucky, Arkansas,
- Other states’ trigger laws will go into effect within days
after the Dobbs ruling – Wyoming, Idaho, Texas, and
- And still other states’ trigger laws will go into effect
upon certification from the state’s Attorney General or
legislative counsel – North Dakota and Mississippi.
Some of these states, and others as well, also have
pre-Roe abortion bans that have not been enforced since
Roe was decided, but could be enforced now. For instance,
the Texas Attorney General has taken the position that Texas’
pre-Roe abortion ban is already effective, even before the
effective date of the state’s trigger law. Although many states
include exemptions in their abortion laws for health or medical
risk as well as cases of rape or incest, these exemptions may
require the pregnant individual to report their case to law
enforcement and meet other requirements before the pregnant
individual can proceed with an abortion.
The Dobbs decision will also have immediate and
long-lasting effects on a wide range of individuals and
- employers, insurers and health plans that cover or provide
access to abortion services and benefits;
- healthcare providers, practitioners, and facilities who provide
abortion services or provide counseling, advice and support to
those seeking an abortion; and
- other individuals and organizations that facilitate the
provision of abortion services.
As the individual states continue to respond to the
Dobbs decision and finalize the laws and regulations
surrounding abortion restrictions, companies or organizations that
have not yet established a plan to address post-Roe
abortion restrictions should consider consulting with counsel as to
existing policies on reproductive services and any need to adjust
such policies to remain in compliance with evolving state law.
Issues for consideration may include addressing access to
reproductive health benefits and services; appropriate
administration of employer-sponsored health benefit plans covering
reproductive health benefits for employees; telemedicine
requirements, especially those surrounding the provision of
abortion counseling and the prescribing of mifepristone; health
data privacy of individuals seeking abortions; and potential
litigation risks for healthcare providers who may continue to
provide abortion services and other reproductive health care to
patients in states where abortion is, or will be, illegal.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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