Roe v. Wade Overturned: What Now?

On June 24, 2022, the U.S. Supreme Court issued its ruling in Dobbs v. Jackson Women’s Health Organization, overturning Roe v. Wade and declaring that abortion is not a constitutional right. The decision means that the ability to seek an abortion will be a matter for states to determine.

In anticipation of this ruling, several states had implemented “trigger laws” banning or restricting abortion in the event Roe v. Wade was overturned. Those laws are now in effect and likely to be the subject of litigation in several states. As the laws and regulations work their way through the court system, the legal landscape regarding abortion rights will likely change over the next few months or years in many states. This rapidly evolving patchwork of state laws leaves healthcare providers and organizations with little guidance on how to deliver healthcare in a post-Roe environment.

As a result of Dobbs, providers in some states can anticipate no changes, while providers in other states will experience significant changes in their practice. Whether you provide healthcare in a state that will restrict abortion access or in a state where abortion access will remain the same, the Dobbs ruling will impact your practice. Proactive planning is essential for all healthcare providers and organizations, especially those who work with reproductive health, as they may see increased legal activity that includes subpoenas, discovery, and deposition requests. While each organization must develop its own policies and procedures in response to the Dobbs ruling, consider the following when analyzing and planning for the changes ahead:

If you practice in a nonrestrictive state:

• Do you know the law? Work with an attorney to understand the law and how it impacts your practice, especially in regard to multistate practice, provision of care to out-of-state patients, telehealth, and prescription of medications that induce abortions. Ensure that your providers have an accurate, realistic understanding of the potential for civil and criminal liability resulting from the provision of abortion services.
• Can you handle an influx of out-of-state patients? As some states become more restrictive regarding abortion access, patients will seek abortions in less restrictive states. Work with community health leaders to develop a plan for managing this influx of patients.
• Are you able to accommodate an increased demand for training? In states where restriction will increase, medical students, interns, and residents may not have the opportunity to learn how to perform abortions and other related procedures. Some of these learners may travel to less restrictive states to learn these procedures. If your facility decides to provide this training, work with community health leaders or organizational leadership to develop a training plan.
• How will you provide post-procedural follow-up of out-of-state patients? One of the essential components of safe post-procedural care is the ability to follow up with patients. Patients who come from other states may not have the time and resources to stay nearby after an abortion. Develop policies and procedures for following up with these patients during the post-procedural course.
• What are your insurance requirements? Work with legal counsel to explore the possibility of out-of-state lawsuits and criminal prosecution resulting from abortion-related activities. Ensure that you have adequate resources and insurance to help protect your organization and providers and that you are familiar with policy exclusions and limitations.
• Do you understand the impact on multistate providers? Many providers who practice close to a state border may be licensed in two or more states. Work with an attorney to understand the law in the states in which you are licensed.
• Do you need to change your documentation strategies? Taking a full and complete history from a patient that travels from another state for abortion care may expose that patient and/or provider to civil or criminal liability. Develop a strategy for how you will obtain and document a history and physical exam from these patients.
• How will you prescribe medications? Work with legal counsel to explore restrictions regarding the prescription of abortion-related medication to out-of-state patients. Develop a strategy for prescribing medications in this class.

If you practice in a restrictive state:

• Do you know the law? Work with an attorney to understand abortion laws in your state, any applicable exceptions (e.g., rape, incest, health and welfare of the mother, etc.), and how state law affects your ability to manage the following patients:
  • Patients presenting to the emergency department who need an abortion to stabilize their condition or save their life. Develop a plan for managing or transferring these patients that is consistent with your obligations under EMTALA . 
  • Oncologic patients who need or request an abortion to optimize their chance of survival. Work with your attorney to develop a plan for managing these patients.
  • Patients who require dilation and curettage for medical reasons. These patients may attract the attention of law enforcement. Work with your attorney to develop a plan for managing these patients and for understanding documentation and history-taking requirements.
  • Patients who experience fetal demise. These patients may attract the attention of law enforcement. Work with your attorney to develop a plan for managing these patients and for understanding documentation and history-taking requirements.
• Can you manage the increased number of deliveries? As abortion services become more restrictive, more babies will be born. Many of these deliveries will happen in rural or underserved areas or in facilities with a shortage of obstetric providers. Work with community health leaders in your area to develop a plan for managing the increased need for perinatal care.
• How will you manage issues surrounding self- or illegally attempted abortions? People who have undergone attempted illegal or self-abortions can experience life-threatening complications. Work with an attorney to understand your legal obligations when treating these patients and develop a plan for managing or transferring them.
• Do you understand the impact on multistate providers? Many providers who practice close to a state border may be licensed in two or more states. Work with an attorney to understand the law in the states in which you are licensed.
• What are the implications for assisted reproductive technologies? Work with an attorney to understand the effect of state law on assisted reproductive technologies and the disposal, death, or implantation of embryos. Ensure that policies and procedures reflect current state law and develop a process for providing informed consent to patients.
• What are your insurance requirements? Work with legal counsel to explore the possibility of lawsuits and criminal prosecution in your state resulting from abortion-related activities. Ensure that you have adequate resources and insurance to help protect your organization and providers and that you are familiar with policy exclusions and limitations.

The ways that providers and healthcare organizations deliver reproductive healthcare will continue to change as the post-Roe legal landscape evolves. Staying abreast of these developments and working with an attorney to anticipate issues and plan accordingly will help minimize confusion and disruption.


Copyrighted. No legal or medical advice intended. This post includes general risk management guidelines. Such materials are for informational purposes only and may not reflect the most current legal or medical developments. These informational materials are not intended, and must not be taken, as legal or medical advice on any particular set of facts or circumstances.