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.
State Variances on Enforcement Action Post-Roe
As of July 1, 2022, nearly half of the nation’s states have effectively banned all or nearly all abortions, through statutory prohibitions that pre-dated and were pre-empted by Roe v. Wade, or through more recently enacted laws, some immediately triggered by the holding in Dobbs v. Jackson and others effectuated by state action shortly after the decision’s issuance on June 24.[1] It is expected that additional states will also move quickly to ban or restrict abortion. This will mean limited or non-existent access to abortion services in 26 U.S. states. Due to the variances in state laws and enforcement agendas in this space, the range of enforcement activity and its impact on providers, patients, companies, and executives is largely uncertain at this time.
The decision to enforce laws related to abortion bans and restrictions is subject to prosecutorial discretion, which varies widely from state to state, and, in certain states, may even be influenced by locally elected District Attorneys. Officials may try to impact politics through their enforcement activity, or, indeed, may find that politics exert pressure on their agendas. Each state will therefore vary in its enforcement initiatives and level of aggression. For instance, Texas Attorney General Ken Paxton indicated in a recent “Advisory on Texas Law Upon Reversal of Roe v. Wade” that enforcement in Texas will be pursued heavily at the criminal, civil, and licensure levels. In contrast, Michigan Attorney General Dana Nessel publicly stated that her office would not enforce that state’s 1931 abortion ban.
Further clouding the assessment of enforcement risk, some states, such as Texas and Oklahoma, have provisions allowing for enforcement by so-called “private attorneys general” – private lawyers who may bring lawsuits in the public interest. While some ban states may not pursue enforcement aggressively at first, only time will tell whether that will change.
Targets of Enforcement Efforts
Those closest to performing abortions, such as medical providers, will likely be first targets of enforcement efforts. Ban states like Alabama and Texas may hold medical personnel who perform abortions – or the organizations that employ them – criminally liable. Such individuals could also be subject to heavy fines, imprisonment, and even loss of licensure. States may also pursue patients receiving abortions at criminal and civil levels. Entities and individuals with a less direct connection to the abortion procedure (such as insurers, pharmacies, and employers) may eventually follow as targets, along with those providers that issue treatment advice or send abortifacients into restrictive states (such as telehealth providers and mail-order pharmacies). Indeed, as in Texas, several broadly written laws create liability for “aiding and abetting” an abortion. This also adds to the uncertainty of enforcement risk, as well as who else may be subject to legal exposure. The stakes are high in numerous states, such as Texas, where the law provides for $100,000 in penalties and criminal charges, and Alabama, where the law provides for $1,000 in penalties, and criminal charges.
Evidence and Information Requests to Support Enforcement Action
State prosecutors building their cases may also create hurdles for targets of investigation. The collection of evidence for prosecutions to come may be highly burdensome – both financially and in terms of the time it will take to sufficiently respond – for entities that are served subpoenas or other information requests. The spectrum of evidence that prosecutors may seek could include cell phone records (including call logs, text messages, and other data), web search history (for patients and their allies who seek out-of-state providers to perform banned medical services), surveillance footage of medical providers’ facilities (to prove a patient’s presence), airline, tolls, and other travel records, and of course, patient medical records. To prove their cases, prosecutors in ban states will likely subpoena or make requests for records that might seem violative of patient privacy and HIPAA rules on their face. Entities may be obligated to raise those arguments in response to such seemingly overreaching requests, but should also have a plan in place regarding what to do if such objections are overruled.
Interstate Travel and Enforcement Action
Dobbs also raises many questions and much uncertainty regarding federal vs. state jurisdictional issues over the right to travel to obtain abortions in a non-ban state. In particular, two points for consideration are: (1) whether a ban state can prohibit a resident of its state to travel to a non-ban state to receive an abortion, and (2) if a resident of a ban state receives an abortion in a non-ban state, whether that resident, and that resident’s aiders or abettors, can be prosecuted for that activity. In his concurring opinion to Dobbs, Justice Brett Kavanaugh opined that travel bans would fail “based on the constitutional right to interstate travel,” a position which was echoed by U.S. Attorney General Merrick Garland. In a statement released by the U.S. Department of Justice (DOJ) shortly after the Dobbs decision was issued, AG Garland stated that, “the Constitution continues to restrict states’ authority to ban reproductive services provided outside their borders.” AG Garland added that, “women who reside in states that have banned access to comprehensive reproductive care must remain free to seek that care in states where it is legal.”
Despite Justice Kavanaugh’s concurrence and the similar view expressed by the DOJ, some states may seek to regulate their inhabitants’ travel in pursuit of circumventing their abortion bans. Further, some state lawmakers have proposed punishing individuals who merely help others travel across state lines to obtain abortions, a point which was unaddressed by Justice Kavanaugh. Such persons may also be subject to criminal, and civil enforcement risks governed by the state in which the providers operate, and where any related activity occurred. The constitutionality of any attempted restrictions on individuals’ rights to travel to a non-ban state to receive an abortion may be held to high scrutiny, and other conflicts of law or interstate commerce issues that might be raised in the context of aiding and abetting cases may give rise to novel questions of law. While outcomes are uncertain, in any such cases, the issues could take years to litigate.
Conclusion
All of these uncertainties preview conflicts between federal and state laws. Federal positioning such as that put forth by AG Garland will likely run counter to statewide abortion bans and enforcement initiatives, the effects of which are yet to be seen.
As legal professionals attempt to prepare for the enforcement landscape following Dobbs, all industries should closely monitor the rapidly changing post-Roe world and the uncharted legal issues that will arise in the wake of this significant decision. These complex issues should not be navigated alone and consultation with experienced counsel is a must, especially if contact by government officials is anticipated, and certainly whenever potential enforcement action occurs.
For additional information about this issue, please contact authors of this post, Sarah M. Hall, and Elena M. Quattrone, or the Epstein Becker & Green, P.C. attorney who regularly assists you.
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[1] These states include Alabama, Arkansas, Kentucky, Missouri, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, Utah, Wisconsin, and Wyoming. Some of these, as well as other pre-existing statutes and trigger laws not yet in effect in Georgia, Idaho, Mississippi, West Virginia have been challenged in court. Additional state abortion bans, based either on pre-Roe laws or on trigger laws, have been blocked, at least temporarily, by judicial action, including those in Arizona, Florida, Louisiana, and Utah.
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