In the wake of the Supreme Court’s June 24 decision in Dobbs v. Jackson Women’s Health Organization, which overturned Roe v. Wade’s long-standing constitutional protections for abortion access, more than a dozen states have enacted new laws—or begun to enforce old ones—that prohibit all or most abortions. The result is a fast-changing and often uncertain legal landscape for pregnant people who seek to terminate their pregnancy, health care providers and community organizations that support access to abortion services across state lines. For additional background, see Manatt’s overview of the Dobbs decision and the many types of challenging legal questions that arise in a post-Roe world.
This issue brief aims to orient health care provider organizations to the various types of abortion restrictions enacted by so-called “Ban States” and the circumstances in which those laws may prohibit providers from offering abortion or related services, including providers located in a Ban State, as well as providers that are located in “Access States” with more permissive laws and that may seek to serve Ban State residents who have no local access to abortion services.
The chart here assesses the relative risk presented by several clinical scenarios involving a pregnant person from a Ban State who seeks to terminate their pregnancy, including the abortion services themselves, as well as services that may be provided prior to or following an abortion (which may or may not be furnished by the same provider who performed the abortion). Although certain scenarios can be assigned a score of relatively low or relatively high risk, for many scenarios, the level of risk will depend on the specific laws of the patient’s home state and the state in which the provider is located, and perhaps also on other specific circumstances of the clinical encounter. Providers should seek legal counsel for up-to-date, state- and case-specific advice.
Variation in State Laws That Restrict Abortion Access
This analysis is challenging due to the immense variability in state laws that restrict access to abortion, potentially including multiple abortion prohibitions in a single state. State laws may vary along dimensions such as the following:1
- Scope of prohibition. Some states have banned abortions outright, while others prohibit abortions based on the developmental stage of the fetus (e.g., following the detection of a fetal heartbeat, which typically occurs after six weeks of gestation), or based on the duration of the pregnancy (e.g., 15, 20 or 22 weeks’ gestation).
- Exceptions. States may or may not allow an otherwise prohibited abortion in cases where the abortion is necessary to save the life of or prevent serious harm to the pregnant person, where the pregnancy resulted from rape or incest, or where the fetus has an anomaly that is inconsistent with life. Moreover, these exceptions may be defined more broadly or more narrowly under different laws.
- Aiding and abetting. In addition to prohibiting the abortion itself, state laws may create liability for a person who “aids or abets” the performance of an illegal abortion. Texas’ SB 8, for example, expressly defines “aiding and abetting” to include “paying for or reimbursing the costs of an abortion through insurance or otherwise.” In addition, criminal prohibitions on abortion may be susceptible to general theories of indirect criminal liability, such as accomplice liability, conspiracy or accessory after the fact.
- Nature of liability. States may establish criminal prohibitions that carry the threat of prison time, civil laws that carry monetary penalties, and professional disciplinary standards that could result in the loss of a license to practice medicine or other regulated health care profession.
- Enforcement. Although state abortion prohibitions are generally enforced by state officials, such as state prosecutors, health agencies or professional disciplinary bodies, a few states have enacted “bounty hunter” laws that allow private citizens to file lawsuits against abortion providers (and potentially against “aiders and abettors”). Texas’ SB 8 was the first such law and allows private bounty hunters to collect up to $10,000 per violation. Even if the defendant is found not liable, the law prohibits courts from awarding the defendant attorney’s fees, regardless of how frivolous the claim may have been.
- Cross-state liability. Although a state could theoretically pass a law that expressly criminalizes seeking, performing or facilitating an abortion outside state lines, current abortion bans are typically either expressly limited to in-state conduct or silent on this issue. In such scenarios, assessing legal risk for an out-of-state provider may require research on the state’s general standards regarding “extraterritoriality”—meaning the circumstances under which the state applies its laws to out-of-state conduct or actors—as well as background principles of state jurisdiction, due process and other constitutional protections.
Complexity Is Compounded by Uncertainty
In addition to the complexity created by the sheer number of abortion bans, provider organizations are grappling with the uncertainty resulting from broadly phrased laws that have only recently taken effect, and which therefore lack an established track record of enforcement practices and judicial interpretations. It remains to be seen how these laws will be applied by state officials and interpreted by the courts, including potential interactions with federal laws such as the constitutional protections for free speech, due process and interstate travel. The Dobbs decision magnified this ambiguity in another respect by making it clear that the Supreme Court was willing to reconsider long-established precedents.
This ambiguity can create a chilling effect on legal conduct, deterring cautious providers from furnishing permissible services or connecting patients to resources. There have already been incidents of providers refusing to provide miscarriage care out of fear of legal action.
Meanwhile, some Access States have taken action to protect providers who offer, and patients who receive, abortions that are provided within state lines in compliance with the Access State’s laws. These new laws—sometimes referred to as “haven laws” or “shield laws”—may include protections against criminal extraditions, civil discovery orders or professional disciplinary action associated with out-of-state proceedings.
The current degree of ambiguity promises confusion in the near term and is likely to deter providers from engaging in permissible activities out of fear of legal consequences, thereby further reducing access to legally permissible abortion services. Over time, forthcoming court rulings will set precedent and provide additional clarity to providers in each state and working across state lines.
Note: Click here to view and download a chart assessing the relative risk presented by several clinical scenarios involving a pregnant person from a Ban State who seeks to terminate their pregnancy.
1 For state-by-state assessments of current abortion restrictions, see the resources from the Guttmacher Institute and the Center for Reproductive Rights.