Article from Trial Reporter Special Issue 2023
By Brenda Harkavy, Esq. and Leila J. Levi, Esq.
On June 24, 2022, the Supreme Court released its decision in Dobbs v. Jackson Women’s Health Organization (JWHO) (hereafter “Dobbs”), declaring that there is no federal constitutional right to abortion . In overturning Roe v. Wade , which held that the Due Process Clause of the 14th Amendment protected the right of an individual to choose to terminate their pregnancy prior to viability , Dobbs now leaves it to each state to determine the right of pregnant persons to have abortions. This decision leaves the nation in legal purgatory: a situation where reproductive medical care and legal rights have previously operated on a national platform but are now limited by conflicting state abortion laws.
While the post Dobbs legal landscape is still evolving and unfolding, one thing is already clear: the Dobbs decision has had sweeping impacts across the nation, with implications not only for states that banned and restrict abortion access, but also for states, including Maryland, that maintain and protect the right to abortion. , As a result, it is important for lawyers to be aware of the foreseeable implications of Dobbs. While it is impossible to cover the entirety of Dobbs’ anticipated impact in one article, this publication will touch on the quandary of unanswered questions and concerns that Dobbs presents for legal practitioners and their clients who are left in the legal limbo of a United States without federal abortion protections.
Prior to Dobbs, abortion access was already impacted by varying state laws that included gestational limits, waiting periods, in-person state-mandated counseling, bans on public and private insurance coverage for abortion, telehealth restrictions, parental consent and notification, and criminalization of pregnant persons. The Hyde Amendment blocked federal funds from being used to pay for abortion except in limited circumstances, resulting in limited coverage of abortion under Medicaid and other federal programs. Almost immediately after the Supreme Court released its Dobbs’ opinion, state governments across the country began to enforce or pass abortion bans , thus creating a patchwork of states devoid of abortion services. These states are juxtaposed against other states that have reaffirmed their intention to protect reproductive services and abortion access.
Within the first few months after the Dobbs decision, one in three American women lost access to abortions, with more people expected to have access restricted as state legislatures continue to pass further restrictions. Those unable to access abortion in their home states are now forced to travel long distances for care, with residents in the South having to travel more than four hours on average to seek care in states with less restrictive laws. Maryland has been and continues to be a resource for individuals unable to access abortion services in their home states. Local officials in Maryland acknowledged preparations for the influx of patients in Dobbs’ aftermath and clinics in Maryland have reported a surge in out-of-state patients seeking abortion care, from places like Pennsylvania, West Virginia, Ohio, and Texas. This influx of patients is not likely to stop; experts believe that ultimately 26 states will ban abortion and/or impose strict limits on abortion access . Maryland’s neighboring state of West Virginia’s abortion ban prohibits abortions at all stages of pregnancy with few limited exceptions. The state’s ban also includes criminal penalties enforceable as of December 15, 2022.
As pregnant people seek abortion services in Maryland, questions arise regarding the scope and reach of state laws prohibiting and/or discouraging residents from seeking care in other states. The Texas Heartbeat Act, Senate Bill 8 (SB 8), a law passed prior to Dobbs, bans abortions after six weeks of pregnancy and permits any member of the public, including someone residing outside of Texas, to sue anyone who helps a patient in Texas access abortion after six weeks of pregnancy for a minimum of $10,000. (emphasis added). Further, Texas’s penal code provides that “conduct outside this state constitutes an attempt to commit an offense inside this state.” Lawmakers in several other states have announced their intention to mirror Texas’s SB 8. Texas’s SB 8 and laws criminalizing people seeking abortion care, reproductive care providers, and those deemed to “facilitate” or “aid and abet” abortion services, portends efforts by state authorities to penalize out of state providers, as well as employers that offer financial assistance to patients or employees from states with bans. Laws penalizing those deemed to have aided or abetted abortion arguably create a pandora’s box pertaining to a myriad of legal issues including corporate criminal liability, choice of law issues, and whether a corporation is shielded from liability if it maintains a principal place of business in a state that safeguards abortion services. Maryland companies that employ personnel in other states, and subsidize out-of-state travel for abortion services, may seek legal advice on mitigating the risk of civil and criminal liability.
Intertwined with the issue of liability for violating certain states’ aiding and abetting laws, employers may also be subject to law enforcement subpoenas for employee health information that will be used to investigate whether an employee has obtained an abortion. An employee’s records are not considered subject to the Health Insurance Portability and Accountability Act’s (“HIPAA”) privacy requirements (Privacy Rule). HIPPA’s Privacy Rule provides limited circumstances where a patient’s protected health information can be disclosed without the “individuals signed authorization” by covered entities, such as health plans, health care clearinghouses, and health care providers. While HHS provided guidance for covered entities relating to their duties to comply with the Privacy Rule and how to balance those duties in the face of subpoenas, an employer does not have the ability to use the Privacy Rule as a shield for disclosure. Further, private litigants and out-of-state prosecutors may subpoena other company information, such as emails, financial information, and other documents in their pursuant for criminal charges.
Healthcare providers must also contend with the nuances of state laws banning abortions, including increasingly severe criminal penalties. Since Dobbs, the number of states that prohibit the use of telehealth services to obtain abortion inducing medications have increased significantly. As of November 2022, abortion in any form was entirely banned in 12 states, and 18 states prohibited the use of telemedicine for medication abortion. The development of telehealth care generally infuses a new variety of legal uncertainty as well. For example: if telehealth is considered to be rendered in the state where the patient is located, and a provider in an abortion-prohibited state offers telehealth services to a pregnant person in a state that permits telehealth for the purposes of obtaining a prescription to an abortion inducing drug, could the provider be subjected to civil and/or criminal liability for “aiding and abetting an abortion”? Further, do providers who are licensed in more than one state risk disciplinary action in states that ban telehealth abortion services, or states that are hostile to abortion, if they provide care in a state where abortion is legal?
Since Dobbs has removed federal controls on abortion law, the enforcement of criminal, civil, and licensure penalties will really come down to the individual discretion of state lawmakers and those with the discretion to prioritize and enforce state laws, such as State Attorneys General, and district attorneys . Ultimately, federalism principals, including the right to interstate travel, and the Dormant Commerce Clause may serve as barriers to the extraterritorial application of state laws, but it may be years before these issues are litigated and ultimately decided.
In Roe v. Wade, the Supreme Court held “the word ‘person,’ as used in the Fourteenth Amendment, does not include the unborn,” thereby limiting laws from establishing fetal personhood prior to fetal viability. While the Dobbs decision stated that “[o]ur opinion is not based on any view about if and when prenatal life is entitled to any of the rights enjoined after birth” it opened the door to laws granting fertilized eggs, embryos, and fetuses, the same rights as those already born. In the wake of the Dobbs decision, state legislation has been expanded and introduced to confer rights both prior to and at conception. In July 2022, Ohio House Republications introduced H.B. 704, a bill recognizing “the personhood of an unborn human individual from the moment of conception” thereby granting “personhood” status to a fetus.” In August 2022, Georgia declared that a pregnant person could claim a tax exemption for, “any unborn child with a detectable human heartbeat.” As evidenced by the former examples, laws conferring “personhood” status to a fetus affects a variety of legal doctrines including, but not limited to: child custody; child abuse, support, and neglect claims; embryo disposition; and government control over the medications a pregnant person takes among other decisions that may be deemed to endanger the health of the pregnancy.
Legal claims asserted on behalf of a fetus are not new to Maryland. The 1983 case of Hagerstown Reprod. Health Services v. Fritz, asked “[w]hether the child abuse laws of Maryland apply to a fetus being aborted.” In that case, a husband sought an injunction to prevent his wife from having an abortion. The court declined to address the issue due to mootness, since the wife obtained an abortion prior to oral argument on the issue. However, the framing of this case shows what could flow from fetal personhood, especially in states in which “child” has already been held to encompass a fetus under certain statutes. The implications of these potential changes in defining a fertilized embryo as a child may likely have larger implications on many aspects of American law. Defining a fetus as a child or person from the earliest stages of pregnancy might suggest that child support obligations could be ordered to begin prior to birth. For example, U.S. Senators Marco Rubio and Kevin Cramer, recently introduced the Unborn Child Support Act to amend the Social Security Act to allow, but not require, pregnant people to request child support beginning from the month of conception onward.
Changing the definition of “child” has also affected some criminal statutes as well. In 2020, the Oklahoma Court of Criminal Appeals ruled that a pregnant person can be charged with felony child neglect for using drugs while pregnant; a crime which carries a possible life sentence. More recently, in 2021, the Maryland case of Ead v. Hagerstown Reprod. Health Services , queried whether, “[t]he father of a preborn child has standing to assert his unborn child's right to life under the Due Process Clause of the Fourteenth Amendment, as recognized by President Reagan in 1988 by his promulgation of Presidential Proclamation No. 5761, commonly referred to as the ‘Declaration of Independence for the Preborn’?” and “Should this Court “follow the science” and hold that the life of a human being begins at the point of conception?”
Assisted Reproductive Technologies (ART) are all treatments that include the handling, storage and insemination of eggs and sperm and/or embryos. If a state confers personhood on a fetus, it could impact fertility treatments. When a state endeavors to define human life to begin at fertilization, fertilized eggs and embryos may be granted the same rights as the already born, and anything that puts an embryo at risk may be deemed a criminal violation. The American Society for Reproductive Medicine notes that state laws banning abortion can potentially be written in a way that bans Invitro fertilization (IVF) and other ART procedures. Even unintentionally, states that seek to follow Dobbs could limit options for those people seeking IVF and the benefits of ART.
Not far from the Maryland border, there are efforts in Ohio to pass legislation that would grant personhood from the moment of conception. If the legislation passed, reasonable access to IVF in Ohio would be in jeopardy. Doctors note that if the bill passed, it would affect their ability to ensure their patients’ health, as they could be obligated to transfer multiple embryos during procedures in order to avoid destroying excess embryos at the end of treatment cycles and procedures. In situations where IVF results in in more embryos than are used, their destruction could be a criminal violation if the personhood law were to pass.
The Center for Disease Control and Prevention estimates that 83,946 babies born in 2019 were conceived via ART. That number has doubled over the past decade. Where ART is frequently used by the LGBTQ+ community, state restrictions that affect the use of ART could arguably disproportionately impact LGBTQ+ people and all those who have barriers to reproduction as they try to access ways to build their families. These impacts will likely impact logistical factors such as traveling out of state for ART procedures, the use of gestational surrogates and other reproductive decisions that are innately personal. As state laws come into place and the need for travel to access reproductive medical care increases, lawyers will need to be aware of the risks of using ART and the potential legal violations that could result in other jurisdictions.
In Dobbs’ aftermath, there are countless legal questions and issues that are still unfolding, and it is likely that much-needed concrete answers and applicable case law will lag woefully behind. Amid this legal conflict and turmoil, the Dobbs decision includes Justice Thomas’s concurrence, where he states that the Court should also revisit other substantive due process rights, including Obergefell v. Hodges, which legalized same-sex marriage, and Lawrence v. Texas, which legalized same-sex sexual intercourse. Placing these rights at risk will likely lead to legal challenges similar to those that are flowing from Dobbs.
Brenda Harkavy is an associate attorney at Janet, Janet & Suggs in Pikesville, Maryland where her practice is dedicated to representing victims of sexual abuse. Prior to joining JJS, Brenda served as a prosecutor, where she litigated child sexual abuse, adult sexual offense, child pornography, and intimate partner violence cases—including intimate partner homicides—and litigated countless jury trials. Prior to becoming a prosecutor Brenda served as a judicial law clerk to the Honorable Stephen J. Sfekas in the Baltimore City Circuit Court. Brenda is a graduate of American University, Washington College of Law where she served as President of the Women's Law Association and represented asylum seekers for the International Human Rights Law Clinic. She received her undergraduate degree at the University of Pennsylvania.
Leila J. Levi is a Senior Counsel for Reproductive Rights and Health at the National Women’s Law Center (NWLC). The views expressed in this article are the authors’ and do not necessarily represent the views of the NWLC. She spearheads NWLC’s work developing legal support for health care professionals facing employment barriers and discrimination due to their support for or participation in abortion care. Prior to joining NWLC, she was an Attorney-Advisor at the Office of the General Counsel at the U.S. Department of Agriculture in the Civil Rights, Labor, and Employment Law Division, Litigation Section, and served as a Special Assistant U.S. Attorney for the District of Columbia, as a prosecutor in the Sex Offense and Domestic Violence section, and in the Civil Division, defending the government in civil actions. She has a J.D. from American University, Washington College of Law and B.A. from Rice University.
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