On June 24, 2022, the United States Supreme Court published Slip Opinion 19-1392, in which it decided Dobbs v. Jackson Women’s Health Organization. That case originated as a challenge to Mississippi’s Gestational Age Act, which prohibited abortion past 15 weeks with an exception for medical emergency or severe fetal abnormality (Miss. Code Ann. §41-41-191). The challenge was brought by Jackson Women’s Health Organization and one of its physicians, arguing the Act violated women’s constitutional right to abortion established in Roe v. Wade (410 US 113) and Planned Parenthood of Southeast Pennsylvania v. Casey (505 US 833). In his majority opinion, Justice Samuel Alito averred that Roe was “egregiously wrong from the start” with “exceptionally weak reasoning,” and that the decision led to damaging consequences and enflamed the abortion debate, deepening its attendant ideological division. The Supreme Court held in Dobbs that the United States Constitution does not confer a right to abortion, Roe and Casey were overturned, and the authority to regulate abortion was returned “to the people’s elected officials,” i.e. individual states.
Upon the Supreme Court’s publication of this opinion overturning approximately 50 years of settled precedent, different forms of state abortion regulation became effective across the country. While some states had not enacted any regulations since the 19th century, leaving those states with abortion laws drafted by its great, great grandfathers, other states had prepared for the possibility of long-standing abortion precedent being overturned and had “trigger-law” regulations drafted more recently to take effect in the event Roe was overturned. Still other states have legislators who are now scrambling to codify whatever the prevailing winds in their state suggest will be supported by their constituents at the ballot box. The laws from state to state vary wildly, including total bans with zero exceptions for rape, incest or health of the mother, and criminal penalties for getting abortions out-of-state or receiving medications formulated to end pregnancy from out-of-state, as well as bans determined by gestational age, ranging anywhere from “heartbeat bills” to bans only after viability or no gestational age limit at all. A comprehensive guide to the status of abortion regulation in each state was published by the New York Times on July 18, 2022.
In response to the uncertainty caused by the variability of abortion regulations from state to state when the Slip Opinion was published, President Biden spoke to reporters the same day, commenting on the extreme and dangerous nature of the Opinion and the risk it posed “to the health and life of women across the nation.” President Biden also reported he was “stunned” by the decision, and that Dobbs marked the first time in history the Supreme Court expressly took away a fundamental constitutional right. While acknowledging his administration’s options were limited for ensuring women remained free to travel safely to other states for abortion and that abortion medication would be widely available, President Biden vowed “[T]his is not over.”
On July 8, 2022, President Biden acknowledged his endgame was a federal law restoring the protections of Roe. In an immediate effort to blunt the impact of the Supreme Court’s ruling, Biden signed an “Executive Order Protecting Access to Reproductive Health Care Services,” directing the Secretary of Health and Human Services (HHS) to take a number of actions and report to him with the following stated purposes:
Safeguarding access to reproductive health care services, including abortion and contraception;
Protecting the privacy of patients and their access to accurate information;
Promoting the safety and security of patients, providers, and clinics; and
Coordinating the implementation of Federal efforts to protect reproductive rights and access to health care.
From another corner of the federal government, on July 11, 2022, the Centers for Medicare and Medicaid Services (CMS) posted Memo #QSO-22-22-Hospitals, entitled “Reinforcement of EMTALA Obligations specific to Patients who are Pregnant or are Experiencing Pregnancy Loss (UPDATED JULY 2022). Citing the requirements of The Emergency Medical Treatment and Labor Act (EMTALA) that all hospital patients receive an appropriate medical screening exam, stabilizing treatment, and transfer, if necessary, CMS published the Memo to reinforce those requirements, and to advise hospitals that the EMTALA requirements exist “irrespective of any state laws or mandates that apply to specific procedures.” The Memo provides the following guidance:
The determination of whether an “emergency medical condition” exists that invokes EMTALA requirements is wholly up to the treating physician, and may include (but is not limited to): ectopic pregnancy, complications of pregnancy loss, or preeclampsia with severe features;
A physician’s duty under EMTALA preempts any directly conflicting state law or mandate that might otherwise prohibit or prevent such treatment;
If the treating physician believes that a pregnant person in the emergency department has an emergency medical condition as defined by EMTALA, and an abortion is the stabilizing treatment necessary to resolve that condition, the physician must provide the abortion; and
When a state law prohibits termination of pregnancy and does not provide an exception for the life and health of the pregnant person, or does have an exception for the life and health of the pregnant person but the exception is defined more narrowly than EMTALA, the state law in question is preempted.
The CMS policy memo clarifies that its purpose is to restate existing guidance for hospital staff and physicians regarding their obligations under EMTALA in light of new state laws prohibiting or restricting access to abortion (upon the overturning of Roe and Casey), and does not contain new policy.
The debate over reproductive health services is far from over, and the landscape is evolving rapidly. On July 14, 2022, the New York Times reported the state of Texas initiated a lawsuit challenging the guidance produced by CMS, claiming it would “force abortions in Texas.” The probability that other states are certain to follow suit, coupled with the Biden administration’s efforts to codify access to abortion at the federal level, sets the stage for a federal supremacy fight the likes of which have not been seen since the days of Marbury v. Madison (5 U.S. 137 (1803)) and McCulloch v. Maryland (17 U.S. 316 (1819)).