August 9, 2022

Volume XII, Number 221

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August 08, 2022

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The Overturning of Roe v. Wade

June 24, 2022, the Supreme Court of the United States issued its decision in Dobbs v. Jackson Women’s Health Organization (Dobbs), overturning Roe v. Wade (Roe) and upending 50 years of precedent protecting a woman's right to privacy in choosing to abort a pregnancy prior to the point of viability. In Dobbs, the Court held that “[t]he Constitution does not confer a right to abortion; Roe and [Planned Parenthood v. Casey (Casey)] [] are overruled; and the authority to regulate abortion is returned to the people and their elected representatives.”

Consistent with the draft majority opinion authored by Justice Samuel Alito that was leaked to Politico in early May, the Court overruled Roe and Casey and held that there is no federal constitutional right to obtain an abortion and that abortion restrictions are subject to rational basis review. This decision leaves individual states free to prohibit and criminalize abortion altogether. Justices Clarence Thomas and Brett Kavanaugh filed concurring opinions. Chief Justice John Roberts filed an opinion concurring in the judgment. Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan filed a dissenting opinion.

The state statute at issue in Dobbs, Mississippi’s Gestational Age Act, provides that “[e]xcept in a medical emergency or in the case of a severe fetal abnormality, a person shall not intentionally or knowingly perform . . . or induce an abortion of an unborn human being if the probable gestational age of the unborn human being has been determined to be greater than fifteen (15) weeks.” Jackson Women’s Health Organization and one of its physicians (the Respondents) challenged the Mississippi law in the US District Court for the Southern District of Mississippi, alleging that it violated precedents establishing a constitutional right to abortion, including Roe and Casey. The district court granted summary judgment in favor of the Respondents and permanently enjoined enforcement of the law, reasoning that Mississippi’s 15-week restriction on abortion violated Roe and Casey, which forbid states to ban abortion pre-viability. The US Court of Appeals for the Fifth Circuit affirmed, after which the case was appealed to the Supreme Court. In a 6-3 opinion, the Supreme Court held that the Mississippi statute at issue is constitutional, Roe and Casey were wrongly decided and that the law is constitutional because it satisfies rational-basis review. 

What's Next

As noted in our recent article, the effect of this decision on US companies cannot be understated. Any organization whose operations touch family planning services in any way (e.g., providers, those that facilitate provider activities, investors, payors, employers that provide family planning benefits and health plan service providers) should immediately examine their precise services, geographic footprint, corporate structure and organizational priorities. This includes not only those providers who furnish pregnancy termination services, but also those that provide advice, operational support or other assistance to providers. Employers, insurers and other health plan service providers that cover or provide access to abortion services or benefits should also immediately evaluate their operations and the potential risks of offering such coverage or access in certain states. 

There is a wide variety of state “trigger” and “zombie” laws that arguably took effect today. For those states that require state attorney general or other administrative action, abortion bans will likely be in place within the next two weeks. 

Companies that have not already put in place a plan to address post-Roe restrictions on abortions in states where abortion is now banned or significantly restricted should consult with counsel immediately to determine if it is necessary for them to adjust any reproductive health-related services that may result in an abortion or the destruction of an embryo until the full effect of state restrictions on abortions can be carefully evaluated. This strategy should take into account laws that have now taken effect that prohibit and criminalize abortion services. The obvious exception to this advice is with respect to abortions furnished to save the life or otherwise prevent significant harm to a patient.

We will continue to closely monitor the impacts of this decision and provide updates.

© 2022 McDermott Will & EmeryNational Law Review, Volume XII, Number 175
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About this Author

David Quinn Gacioch, White Collar Criminal Defense Attorney, McDermott Law Firm
Partner

David Quinn Gacioch is a partner in the law firm of McDermott Will & Emery LLP and is based in the Firm's Boston office. He focuses his practice in the areas of white-collar criminal defense and government investigations. Dave also has significant experience in product liability defense, general commercial litigation/arbitration, and appeals.

617-535-4478
Stacey L. Callaghan Healthcare and Private Equity Attorney McDermott Will & Emery Chicago, IL
Associate

Stacey Callaghan counsels healthcare and private equity clients as they navigate transactional, regulatory and compliance issues. She focuses on assisting health systems, physician organizations and other healthcare providers through compliance with HIPAA and other privacy laws, fraud and abuse issues, and governance matters. She is also experienced in executing transactions in the healthcare space, and routinely guides clients through joint ventures and mergers and acquisitions.

Prior to joining McDermott, Stacey was a healthcare associate at a large US-based law firm. She is a...

312-277-7688
Dana M. McSherry, McDermott Will, False Claims Act lawyer,
Partner

Dana McSherry is a partner in the law firm of McDermott Will & Emery LLP and is based in the Firm’s Boston office. Clients rely on Dana’s experience to assist them in securities, healthcare and other government enforcement matters, both civil and criminal.  Dana also represents clients in qui tam/False Claims Act litigation and helps clients by conducting internal investigations.

617 535 4060
Caroline Reignley Healthcare Attorney McDermott Will & Emery Washington, DC
Associate

Caroline Reignley provides valuable counsel on healthcare regulatory and reimbursement law to her clients, including for-profit and nonprofit hospitals, health systems and physician groups.

She is particularly focused on advising clients on Medicare and Medicaid fee-for-service reimbursement, billing and coding, licensure, accreditation and healthcare compliance matters.

Caroline also advises on internal and government investigations related to the False Claims Act, Stark Law and Anti-Kickback Statue. Her experience...

202-756-8548
Paul M. Thompson, McDermott Will Emery, White Collar Criminal Defense,
Partner

Paul M. Thompson is a partner in the law firm of McDermott Will & Emery LLP and serves as the Partner-in-Charge of the Firm’s Washington, D.C., office.  Paul focuses his practice on white-collar criminal defense, congressional investigations and appellate matters.  Paul has been repeatedly recognized by the National Law Journal in its Appellate Hot List.  He was named as a “Star” in Benchmark Litigation 2015 for his work on white-collar matters and appeals. 

Paul is a former federal prosecutor.  He has represented clients...

1 202 756 8032
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