Commercial Litigation Update

With the release of the decision in Dobbs v. Jackson, questions regarding enforcement activity in states that restrict or ban abortion by statute have been raised and have remained mostly hypothetical. The frequency and scope of future enforcement activity remains unknown. Given the variety of laws now in effect in restricted and ban states, and that enforcement of such laws is subject to state prosecutorial discretion as well as the prevailing political climate, enforcement initiatives are expected to vary by state.

On June 24, 2022, the U.S. Supreme Court released its opinion in Dobbs v. Jackson Women’s Health Organization, overturning Roe v. Wade—the 1973 landmark ruling that established the constitutional right to abortion. Now, companies that operate in states where abortions are banned or restricted are facing a quagmire of laws and risks regarding enforcement. Additionally, the risk landscape is not static, but rather in flux, as the federal government (agencies such as the U.S. Department of Justice and the U.S. Department of Health and Human Services) and a myriad of states introduce new legislation and issue guidance on a near-daily basis.

Now that the Supreme Court of the United States has declared that authority to regulate abortion rests with the states, organizations operating across state lines face new and some unprecedented challenges created by the civil and criminal legal issues arising from risks of enforcement in any state where abortion is or will be banned (a “ban state”). Health care providers, employers, and other organizations with any nexus to such states will need to conduct careful analyses and may have to accept an unknown level of enforcement risk while various jurisdictions respond to their newfound power and determine if and how to wield it. The risks may extend to providers who deliver abortions, patients seeking abortions, companies who support their employees traveling to non-ban states to receive abortions, and their executives. The outer parameters of who is subject to enforcement risk are presently unknown but are likely to vary from jurisdiction to jurisdiction.

The day after the Gallup organization reported that public confidence in the Supreme Court has reached new lows, the Court has added what, to many, will be more fuel to that fire. The long-awaited, hotly contested, and divisive opinion in Dobbs v. Jackson Women's Health Organization has officially come down and, given reactions to the premature release of a draft of Justice Alito's majority opinion, the public's expectations on both sides of the abortion debate have been realized.

Our colleague Stuart Gerson of Epstein Becker Green has a new post on SCOTUS Today that will be of interest to our readers: "Court Grants Certiorari in Abortion Case, Issues Several Decisions, and Continues to Demonstrate an Essential Commitment to Textualism".

The following is an excerpt:

The most widely reported action that the Supreme Court took this past Monday is its grant of cert. to review an en banc decision of the Fifth Circuit that, if reversed, would substantially undercut Roe v. Wade. That case won’t be argued until next fall and, for now, the readers of ...