The Chaotic Health Care Landscape in a Post-Roe World

Health Highlights

The authors would like to thank Deborah Bachrach, Bill Bernstein, Michael Kolber, Kinda Serafi, Esra Hudson, Katie Rubinger and Annie Fox for their contributions to this piece.

The Big Picture

On June 24, the Supreme Court of the United States issued a far-reaching decision, Dobbs v. Jackson Women’s Health Organization, that repudiates nearly 50 years of precedent on a woman’s right to abortion services and upends long-standing practice across the health care system. The decision had been foreshadowed in May by a leaked draft of what became the majority decision—and the changes to that draft largely consist of new sections rebutting arguments of concurring and dissenting opinions. The scope and scale of the Dobbs decision is extraordinary by any measure. In the short term, women living in states with laws outlawing abortion or expected to adopt abortion restrictions (approximately 40 million women1) will find their most personal medical decisions open to public scrutiny, and their options for care severely restricted in the event of unwanted or nonviable pregnancies. In the longer term, virtually every stakeholder in the health care system will reexamine its policies and practices to respond to what will be a confusing patchwork of new state laws and approaches to women’s health. Every aspect of the health care system will be affected—from the training of our health care providers, to the ways in which women access care, to the way we pay for services.

Summary of the Opinion

In the long-anticipated decision, the Court held that the “Constitution does not confer a right to abortion. Roe [v. Wade] and Casey [v. Planned Parenthood] must be overruled, and the authority to regulate abortion must be returned to the people and their elected representatives.” As an immediate result of this holding, whether a woman has the right to an abortion, for what reason, for how long, and what penalties or punishments result from violating those rules will be determined by the laws of the state in which she lives.

At issue in Dobbs was a Mississippi law that prohibited performance or induction of an abortion beyond 15 weeks of pregnancy, except in a medical emergency or in the case of a severe fetal abnormality. In the decision, written by Justice Alito on behalf of a five-justice majority, the Court found that “Roe was egregiously wrong from the start.” Applying a strict constructionist lens, the Court found that the Due Process Clause of the Fourteenth Amendment does not protect the “liberty” of accessing abortion care. Chief Justice Roberts concurred in part with the majority’s decision, arguing that a rejection of the “fetal viability” construct that had originated in Roe and been confirmed in Casey was all that was necessary to uphold the Mississippi 15-week ban. Citing the doctrine of judicial restraint, the Chief Justice stopped short of endorsing a full repudiation of a constitutional right to abortion.

For women, Dobbs cuts to the core of concepts of self, inviting state and/or federal lawmakers to regulate what since Roe had been a constitutionally protected right to bodily autonomy and raising the specter that other constitutionally protected personal liberties could be at risk.2 But even as it relates to the Court’s ruling on abortion rights, the fractious decision—with three separate concurring opinions—leaves open questions about what, if any, limits could remain on state efforts to regulate abortion and other related health care decisions. A partial list of these questions is highlighted in the dissent by Justices Breyer, Sotomayor and Kagan:

Must a state law allow abortions when necessary to protect a woman’s life and health? And if so, exactly when? How much risk to a woman’s life can a State force her to incur …? Suppose a patient with pulmonary hypertension has a 30-to-50 percent risk of dying with ongoing pregnancy; is that enough? And short of death, how much illness or injury can the State require her to accept …?

The dissent goes on to question the ruling’s implications for access to the morning-after pill, intrauterine devices (IUDs), in vitro fertilization, and the use of dilation and evacuation or medication for miscarriage management. What about prohibitions on advertising out-of-state abortions or helping women get to out-of-state providers? Or interference with the mailing of drugs used for medication abortions?

Justice Kavanaugh in his concurrence recognizes that abortion-related legal questions are raised by the majority’s decision. He opines, for example, that a state may not bar a resident of one state from traveling to another state to obtain an abortion based on the constitutional right to interstate travel. But otherwise, Justice Kavanaugh, like the majority opinion he joins, appears to leave the “difficult moral and policy questions” related to abortion to the states or Congress to decide.

Finally, Chief Justice Roberts, too, raises questions about protections not addressed in the majority opinion: “I am not sure, for example, that a ban on terminating a pregnancy from the moment of conception must be treated the same under the Constitution as a ban after fifteen weeks.” These musings leave open questions about what, if any, limits on state abortion restrictions a future Court would be willing to entertain in what are likely to be robust efforts to test the boundaries of the current ruling.

Implications for the Health Care System

The Court’s ruling leaves a hazardous landscape not only for women but for providers, payers and others across the health care ecosystem, who are now confronting a patchwork of new state laws, some of which went into effect overnight, designed not only to limit access to abortion but also to punish providers and others who may assist a woman with accessing abortion care.

Overnight, 13 states3 banned or severely curtailed abortion access—these so-called “trigger laws” were enacted to go into effect immediately (with limited exceptions) once Roe had been overturned, and another 13 are expected to follow.4, 5 Combined, these 26 states are home to an estimated 58% of American women of reproductive age (ages 15 to 49) or nearly 40 million women total.6 The bans include, for example, a 2005 South Dakota law, which bans abortion except when necessary to save the life of the mother (with no exceptions for the woman’s health, or for cases of incest or rape).7 Under this law, any person who administers to any pregnant woman, or provides to any woman medicine to induce, an abortion is guilty of a Class 6 felony.8, 9 And illustrating the pace of change that can be expected in state abortion policy, in the days since Dobbs was issued, a state court has already granted a preliminary injunction against a Louisiana state law that provides that any person who performs an abortion by means of an abortion-inducing drug “shall be imprisoned at hard labor for not less than one nor more than five years, fined not less than five thousand nor more than fifty thousand dollars, or both.”10, 11 Due to the injunction, as of this publication, abortion care remains legal in Louisiana.

Statements from Secretary of Health and Human Services (HHS) Xavier Becerra,12 Centers for Medicare & Medicaid Services (CMS) Administrator Chiquita Brooks-LaSure,13 and Attorney General Merrick Garland14 make clear that the Biden Administration intends to ensure Americans have access to reproductive services, including abortions, within their legal authority to do so, and to challenge any state that attempts to infringe on federal authority. As Attorney General Garland articulated:

[T]he Constitution continues to restrict states’ authority to ban reproductive services provided outside their borders … . [U]nder bedrock constitutional principles, 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. Moreover, under fundamental First Amendment principles, individuals must remain free to inform and counsel each other about the reproductive care that is available in other states.

At the same time, states with strong abortion protections have begun to pass laws to protect providers and other actors providing abortion care and support to women crossing state lines for these services.15 As a legal matter, the ability for states to reach across state lines to impose abortion-related penalties appears limited. But the precise boundaries of competing state interests and authorities, and how they intersect with the Court’s decision remain unclear, leaving vexing questions for those left with the task of on-the-ground provision of women’s health services.

Paramount to any consideration of the new abortion landscape is the issue of health equity and the impact of the new restrictions on access to abortion services will have on maternal and child health. In the wake of stark disparities in the pandemic’s impact on communities of color and a national reckoning on race, a renewed commitment to health equity has taken center stage for a growing number of health care and health-related entities. Among the most well documented and tragic health disparities is maternal mortality: Black women are three times more likely than white women to die in childbirth.16 State restrictions on abortion services will be most acutely felt by women without the financial resources to travel to jurisdictions where abortion services are legal, a population disproportionately representing women of color. Addressing the disparate access to abortion services—for women of color as well as low-income women, women with disabilities, trans men, immigrant communities and those living in rural areas—will become increasingly important to advancing health equity.

Below, we have inventoried examples of the legal and practical implications of the Dobbs decision for women, providers, payers, and others involved in women’s health. At the outset, it is important to note that the landscape is rapidly evolving, with few of the new restrictions tested in the courts. And with individual district attorneys making decisions whether to prosecute a woman or a provider, the risk of prosecution is great even if the risk of conviction is far less certain.

  • Treating or Advising Pregnant Women. In treating or advising women, providers will need to understand the risk their patients face in securing an abortion. Some state abortion laws specifically insulate women; other states are silent as to whether a woman can be prosecuted for an in-state abortion; and others specifically provide that a woman who induces her own abortion is subject to criminal prosecution. In addition, providers will want to understand at what stage in a woman’s pregnancy the relevant state makes abortion illegal. At fertilization? At 15 or six weeks? When a heartbeat can be detected? A key question when advising and assisting pregnant women seeking abortions is the extent to which providers, plans and consumer organizations can assist women in states with anti-abortion legislation in obtaining access to abortions in states where abortion is legal. To date, we are unaware of any legislation that bars women from traveling out of state to secure a legal abortion, and both Justice Kavanaugh and Attorney General Garland have opined that such a bar would be illegal. There does not appear to be any legislation that would prevent a provider or plan from advising a woman how to access abortion services in states where abortion is legal. While there is at least one state where proposed state legislation would appear to bar third parties from underwriting the travel costs,17 it is unclear whether this bar would withstand a court challenge, and as of today, few if any states have gone this far.18
  • Physician-Patient Relationship and Professional Licensure. The American Medical Association has decried the Court’s ruling as “an egregious allowance of government intrusion” into the practice of medicine.19 State and federal lawmakers have long sought to place prohibitions on not just the act of abortion but its methods, often based on assertions that are contradicted by medical science. It remains to be seen what, if any, limit exists on lawmakers’ authority to dictate the actions and words of medical professionals—to what extent decisions regarding the risk to the life and health of women will be left to the medical profession and their patients to determine, or will be determined not based on medical judgment but by lawmakers and law enforcement entities. The risks to providers of drawing the wrong lines in these decisions are substantial, including loss of professional license,20 civil penalties and even criminal prosecution, creating a chilling effect in the relationship between physicians and patients, as well as on physicians’ willingness to provide reproductive care.21 It is likely that malpractice insurers will not cover abortion services in states where abortion is illegal as insurers typically exclude from coverage illegal acts.
  • Medical Training. According to the Association of American Medical Colleges (AAMC), nearly half of obstetric and gynecological medical residences are in the states certain or likely to ban abortions in the wake of Dobbs, yielding an “unprecedented” impact on OB-GYN education—including abortion procedures that are routine medical practice after miscarriages—and may significantly impact the pipeline of providers trained to perform these procedures.22 Additionally, whether residency programs in states with more restrictive abortion laws will continue to attract individuals interested in women’s health remains unknown, which may lead to spillover effects into other clinical areas, including but not limited to miscarriage management; IVF, embryo freezing and other fertility treatments; and contraceptive access and family planning guidance.
  • Medication Abortion and Telehealth. Medication abortion is an inexpensive, less invasive alternative to surgical abortions used in the first ten weeks of pregnancy. The medication can be received by mail and taken anywhere, including at home, after an initial consultation with a doctor. Medication abortions accounts for more than half of abortions in the United States.23 Recognizing the benefits of telehealth in supporting access to medication abortion, in December, the Food and Drug Administration (FDA) permanently lifted the “in-person dispensing requirement” for mifepristone after finding that the data supported this modification “to reduce burden on patient access and the health care delivery system.”24 The change enabled women to receive a mifepristone prescription after receiving a telemedicine visit, particularly valuable for women who live in rural areas and those who do not have transportation or who reside in states where abortion services are limited.

    Not surprisingly, a number of state anti-abortion laws have taken direct aim at medication abortion. Attorney General Garland has indicated that state attempts to ban medication abortion on safety grounds would be in direct conflict with the authority and findings of the FDA.25 What, if any, limits the courts will entertain on states’ ability to restrict access to medication abortion on safety or other grounds after Dobbs remains to be seen.26

    Providers of telemedicine must be licensed in and are subject to the laws related to the delivery of services in the state where the patient is receiving care. This means, for example, a doctor in New York, where abortion services are legal, cannot legally provide a telemedicine abortion visit to a woman located in Texas, where the abortion would be banned. During the pandemic, many providers pursued licensure in other states to expand their ability to provide telehealth beyond their own state of residence, which helped increase patients’ access to telemedicine across the country. The Dobbs holding raises new risks for providers who provide reproductive services to patients in states where abortion has been banned or severely limited. Telehealth providers of women’s services will need to carefully assess their offerings to take into account a confusing patchwork of state laws, and will need to carefully parse how to advise women in states with abortion restrictions as to their alternatives.
  • Privacy and Security of Patient Information. Under the Health Insurance Portability and Accountability Act (HIPAA), health care providers and health plans are permitted, but not required, to disclose patients’ protected health information, including reproductive health and abortion information, for certain law enforcement purposes, including when providing the information is required by law27 and when the provider in good faith believes the information “constitutes evidence of criminal conduct that occurred on the premises of” the provider.28 Accordingly, absent federal action, HIPAA would permit a state that has criminalized abortion to require a provider or a health plan to report information that would support the investigation and prosecution of those suspected of violating abortion laws. At the same time, state laws can afford greater protections to patient health information than dictated under HIPAA, and some states already do so specifically for abortion services.
  • Digital Health. Digital health applications (“apps”), including those focused on assisting women with reproductive health, have exploded over the past several years. Many of these digital health apps are not subject to HIPAA, and in the absence of state law protections, the data collected can be used and disclosed by the digital health applications freely. The perils faced by use of these applications has increased dramatically in the wake of Dobbs and will require responsible companies to adopt stringent privacy and security protections for their users, as well as policies on how to respond to information requests from state-led government investigations. In many states, law enforcement may be able to compel disclosure of information collected by a digital application. Digital health apps also hold the potential to assist women in navigating the new landscape, pointing them to women’s health resources and educating them on what is sure to be a fluid provider and payments landscape. It remains to be seen, however, whether state laws that prohibit aiding and abetting a woman in obtaining an abortion will have a chilling effect on the development and deployment of such apps.
  • Health Plans and Employers. Health plan and employer coverage of abortion services varies widely by state and type of coverage. Some states require that state-regulated plans, including individual and group health insurance coverage and state and local government employee plans, cover abortion services; other states prohibit it. Self-insured private-employer group health plans, which frequently cover employees of large employers, are not subject to state insurance regulation. Nothing in federal law requires plans to cover abortion, and the Affordable Care Act (ACA) imposes additional requirements on qualified health plans sold on ACA exchanges that cover abortion.29, 30 Private-employer group health plans will face challenging questions about whether to cover abortions for plan participants and beneficiaries living in states that have banned or restricted abortions and about how those state laws (which could impose criminal penalties) interact with federal law that prevents state regulation of employee benefits plans.

    In the hours after the decision, a wave of announcements from large national employers declared their commitment to providing travel reimbursement and other supports to employees living in states with restrictive abortion policies to enable access to abortion services.31 Such employer decisions are ripe for legal challenge as employers and employees alike navigate the patchwork of state abortion laws. For example, companies may face lawsuits arguing that abortion-related payments violate state bans on facilitating or aiding and abetting abortions, raise privacy concerns, or unfairly discriminate if the same benefits are not provided for other conditions.
  • Medicaid. Medicaid covers 42% of all births in the United States and accounts for 75% of total public expenditures for family planning services.32 The Hyde Amendment, first passed in 1976 and re-enacted annually as a rider to the HHS appropriations bill, bars the use of federal funds from covering abortion services outside of certain exceptions for rape, incest, or if the pregnancy is determined to endanger the woman’s life.33 Because Medicaid is jointly funded by federal and state governments, states are eligible to cover abortion services under Medicaid and Children’s Health Insurance Program (CHIP) using state funding; currently, 16 states use state funding to cover all or some abortion services under Medicaid.34, 35 Medicaid coverage policies are dictated by the state where an individual is enrolled and travel with members to other states.  This means that a Medicaid beneficiary who is enrolled in Medicaid in a state that bans abortion would not have coverage through Medicaid, even if they traveled to a state where abortion was a legal and Medicaid-covered service.

    Beyond abortion services, Medicaid plays a critical role in women’s health, a role that becomes all the more critical in light of Dobbs. Federal officials have already committed to reexamining their policies to ensure access to family planning, pregnancy and post-partum coverage services in the wake of Dobbs, and several states are likely to follow suit. Access to family planning services depends on the state in which an individual lives. Five states do not offer a Medicaid-covered family planning program that extends beyond those eligible for full coverage,36 and there is wide variation with respect to eligibility levels for the states that do, ranging from a low of 138% of the federal poverty level (FPL) to 306% of the FPL. Standardizing the design of state Medicaid family planning programs could improve access by establishing higher minimum federal poverty levels, mandating the scope of covered family planning-related services and increasing the matching rate for such services, but would likely require congressional action.37 Similar to variation seen in family planning programs, Medicaid eligibility levels and covered prenatal services for pregnant people also vary across states,38 and under the American Rescue Plan of 2021, states have a new option to extend Medicaid and CHIP coverage for pregnant people for one year following the baby’s birth.39 As of June 16, 2022, 19 states and D.C. have approval to implement extended postpartum coverage, with 12 additional states planning to implement such coverage.40 The extended postpartum option is currently set to expire in five years unless Congress makes it permanent.

    Sadly, the states with the most restrictive abortion policies also show the weakest maternal and child health outcomes,41 and several recent scientific studies have noted that abortion bans will likely make maternal mortality outcomes even worse.42 It will be critical for all states to work together with federal officials and Congress to redouble efforts to maximize access to the full range of reproductive and women’s health services available to the 42 million women enrolled in Medicaid.

Looking Ahead

The Supreme Court has fundamentally altered the provision of health care for women in America. The full impact of this decision will take years to fully manifest; the ripple effects will be felt for generations to come. In the months ahead, it will be critical for providers, payers, states and all health care stakeholders to understand and stay abreast of the evolving legal landscape, and to dedicate their voices, expertise and creativity to protecting women’s health.

1 Data gathered from State Policies on Abortion, Guttmacher Institute,

2 While the majority decision provides repeated reassurances that other protections (e.g., access to contraception, sexual intimacy between same-sex partners, same sex marriage) will not be impacted by the decision, that conclusion is hard to reconcile with the legal reasoning justifying the holding in the case. And indeed, Justice Thomas in his concurring opinion specifically calls for a reexamination of these and other precedents grounded in the liberty guarantees of the Fourteenth Amendment.

3 13 States Have Abortion Trigger Bans—Here’s What Happens When Roe Is Overturned, Guttmacher Institute, June 6, 2022,

4 HB0092, State of Wyoming, 2022 Legislation,; U.S. Supreme Court Overturns Roe v. Wade, Guttmacher Institute, June 24, 2022,

5 26 States Are Certain or Likely to Ban Abortion Without Roe: Here’s Which Ones and Why, Guttmacher Institute, October 2021,

6 Data gathered from State Policies on Abortion, Guttmacher Institute, available

7 State Facts About Abortion: South Dakota, Guttmacher Institute, June 2022,

8 South Dakota Codified Law 22-17-5.1, South Dakota Legislature,

9 A Class 6 felony has maximum penalties of two years imprisonment in the state penitentiary or a fine of $4,000, or both.

10 Senate Bill No. 388, Louisiana State Legislature,

11 Wagner, J., and Kitchener, C., “Judge temporarily blocks ‘trigger law’ on abortion in Louisiana,” Washington Post, June 27, 2022,

12 HHS Secretary Becerra’s Statement on Supreme Court Ruling in Dobbs v. Jackson Women’s Health Organization, HHS, June 24, 2022,

13 Statement from CMS Administrator Chiquita Brooks-LaSure on Access to Reproductive Health Care, CMS, June 24, 2022,

14 Attorney General Merrick B. Garland Statement on Supreme Court Ruling in Dobbs v. Jackson Women’s Health Organization, U.S. Department of Justice, June 24, 2022,

15 El-bawab, N., “California, New York look to expand abortion access, including to people from other states,” ABC News, May 9, 2022,

16 Working Together to Reduce Black Maternal Mortality, U.S. Centers for Disease Control and Prevention, April 6, 2022,

17 Texas Civil Statutes, Article 71, §§ 4512.1-.6, Formerly: 1961 Texas Penal Code, Ch. 9. Art. 1191-4.

18 Kitchener, C., “Missouri lawmaker seeks to stop residents from obtaining abortions out of state,” The Washington Post, March 8, 2022,

19 Ruling an egregious allowance of government intrusion into medicine, AMA, June 24, 2022,

20 See, e.g., 22 Tex. Admin. Code § 190.8(1)(R).

21 See, e.g., Jeremias, S., “Supreme Court Ruling to Trigger Wyoming Abortion Ban: Physician at state’s lone clinic says she will stop providing abortions once law takes effect, potentially even in cases of rape, incest and grave maternal risk because of vague carve outs in state law,” WyoFile, June 24, 2022,

22 How the repeal of Roe v. Wade will affect training in abortion and reproductive health, AAMC, June 24, 2022,,largest%20OB%2DGYN%20professional%20organization.

23 Belluck, P., “Abortion Pills Now Account for More Than Half of U.S. Abortions,” The New York Times, February 24, 2022,

24 Questions and Answers on Mifeprex, Food and Drug Administration, December 16, 2021,

25 Attorney General Merrick B. Garland Statement on Supreme Court Ruling in Dobbs v. Jackson Women’s Health Organization, U.S. Department of Justice, June 24, 2022,, stating: “In particular, the FDA has approved the use of the medication Mifepristone. States may not ban Mifepristone based on disagreement with the FDA’s expert judgment about its safety and efficacy.” 

26 See Zettler, P., and Sarpatwari, A., “State Restrictions on Mifepristone Access — The Case for Federal Preemption,” New England Journal of Medicine, February 24, 2022,

27 45 C.F.R. 164.512(f)(1)(i).

28 45 C.F.R. 164.512(f)(5).

29 Abortion Coverage Under the Affordable Care Act: Advancing Transparency, Ensuring Choice, and Facilitating Access, April 2015, Guttmacher Institute, Volume 18, Issue 1,

30 Morse, S., “Supreme Court’s Roe v. Wade decision could affect health insurance coverage,” Healthcare Finance, June 24, 2022,

31 Telford, T., and Frankel, T.C., “Disney says it will cover employee travel costs for abortions,” The Washington Post, June 24, 2022,

32 Hasstedt, K., Sonfield, A., and Benson Gold, R., Public Funding for Family Planning and Abortion Services, FY 1980–2015, Guttmacher Institute, April 2017,

33 Salganicoff, A., Sobel, L., and Ramaswamy, A., The Hyde Amendment and Coverage for Abortion Services, Kaiser Family Foundation, March 5, 2021,

34 Id.

35 The Hyde Amendment: A Discriminatory Ban on Insurance Coverage of Abortion, Guttmacher Institute, May 2021,

36 Florida, Tennessee, South Dakota, Wyoming and Kansas.

37 Rosenbaum, S., Murphy, C., Morris, R., et. al., “In the Wake of Dobbs, Make High-Quality Family Planning a Core Element of Medicaid Managed Care,” Health Affairs, June 9, 2022,

38 Ranji, U., Gomez, I., and Salganioff, A., Expanding Postpartum Medicaid Coverage, Kaiser Family Foundation, March 9, 2021,

39 American Rescue Plan Act of 2021, §9812 and §9822a,

40 Medicaid Postpartum Coverage Extension Tracker, Kaiser Family Foundation, June 24, 2022,

41 Rosenbaum, S., A Public Health Paradox: States with Strictest Abortion Laws Have Weakest Maternal and Child Health Outcomes, The Commonwealth Fund, March 8, 2022,

42 Ollove, M., Critics Fear Abortion Bans Could Jeopardize Health of Pregnant Women, The Pew Charitable Trusts June 22, 2022,



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