Clinical care after the Dobbs vs. Jackson Women’s Health Organization Supreme Court decision

The U.S. Supreme Court’s June 2022 decision in Dobbs overturned Roe v. Wade, the 1973 ruling that held there was a constitutional right for pregnant women to have an abortion. Individual states now have significantly more authority to determine women’s level of access to abortion within that state. Many states are revising their laws based on this ability. Approximately half of the states are expected to ban or significantly restrict access to abortions. In some states with abortion restrictions, violations of the law may result in criminal penalties.

Based on the current political makeup of Congress, it is unlikely that Congress will pass any laws restricting or expanding access to abortion until at least after the November 2022 midterm elections. President Biden has issued an executive order on matters related to reproductive health care services, including abortion and contraception. The order instructs federal agencies to develop educational materials, guidance, and action plans to accomplish these goals, but its actual impact is not yet clear. The U.S. Department of Health and Human Services has clarified that the federal EMTALA requirement to provide stabilizing treatment, including abortion, to a patient with an emergency medical condition takes precedence over state laws.

Dobbs’ impact on abortion access will vary based on the state in which you are located. Even before Dobbs, abortion restrictions varied state by state, and laws governing abortion now are in flux in many states. Physicians should keep current on state laws and executive orders that may affect abortion access in the state in which they are located and/or in which their patients reside. The National Conference for State Legislatures website is a good starting point for learning about state abortion laws: https://www.ncsl.org/research/health/state-abortion-laws-in-the-absence-of-roe-v-wade.aspx

The steps a practice must take to comply with Dobbs will depend on the state(s) in which the physician/practice is located, on the medical services provided, and potentially on the individual patient’s state of residency or where the patient is located at the time services are provided. Physicians should take steps to remain knowledgeable and compliant with the laws and executive orders in the states in which they are licensed to practice medicine and in which their patients reside. The National Conference for State Legislatures website is a good starting point for learning about state abortion laws: https://www.ncsl.org/research/health/state-abortion-laws-in-the-absence-of-roe-v-wade.aspx. State medical boards may provide additional guidance on how physicians can comply with any state restrictions on abortion care. National and state medical associations, including specialty associations, may be able to provide additional guidance.

The impact of Dobbs on patient care and practice operations will depend on the state(s) in which your physicians and practice are located and on the medical services your physicians provide. Physicians should take steps to remain knowledgeable and compliant with the laws and executive orders in the states where they practice medicine. Relevant state laws may include laws both for the state in which a physician is located and any state in which a patient resides. Laws governing abortion are in flux in many states. The National Conference for State Legislatures website is a good starting point for learning about state abortion laws: https://www.ncsl.org/research/health/state-abortion-laws-in-the-absence-of-roe-v-wade.aspx. State medical boards may provide additional guidance on how physicians can comply with any state restrictions on abortion care. National and state medical associations, including specialty associations, may also be able to provide additional guidance.

Physicians must comply with all applicable federal and state laws, including state medical board regulations, when providing telemedicine visits. In most cases, the most relevant state law is the law of the state where the patient is located while the telemedicine service is being provided. The need to comply with all relevant laws applies to telemedicine visits to facilitate medication abortions. In December 2021, the U.S. Food and Drug Administration (FDA) began allowing patients to consult with a physician about mifepristone, a drug used to terminate pregnancy, through a telemedicine visit and receive the pills by mail (the prior policy required the drug to be dispensed at a clinic, hospital, or medical office). However, numerous states have passed laws to either ban or restrict the use of telemedicine for abortions. Violations of the laws may result in medical board complaints, loss of license, or criminal charges.

No. Curi’s medical professional liability policy, including but not limited to its exclusions, remains unchanged. Of note, your policy does not apply to damages arising out of or in connection with a criminal act or violation of any statute, ordinance, or regulation that provides for any criminal penalty whether or not there is a criminal charge, prosecution, or conviction. It follows, for example, that if a state in which you practice medicine has classified abortion-related activity as a criminal act or subject to criminal penalty, your medical professional liability coverage would not apply to claims or legal action involving that activity. Likewise, legal fees associated with defending against criminal charges for violating state abortion laws would not be covered, but note that your broad regulatory protection endorsement provides coverage for responding to medical board complaints.

Potential criminal liability for providing abortion care will depend on the state(s) in which you are located but could also depend upon the patient’s state of residency. In some states with abortion restrictions, violations of the law may result in criminal penalties, including fines and/or criminal charges, in addition to medical board complaints or loss of license. Curi provides coverage for legal expenses associated with responding to a medical board complaint, but that policy does not include coverage for legal expenses to defend against criminal charges. Physicians should take steps to ensure they remain knowledgeable and compliant with the laws and executive orders in the states where they practice medicine and in which their patients reside. The National Conference for State Legislatures website is a good starting point for learning about state abortion laws: https://www.ncsl.org/research/health/state-abortion-laws-in-the-absence-of-roe-v-wade. State medical boards may provide additional guidance on how physicians can comply with any state restrictions on abortion care. National and state medical associations, including specialty associations, may also be able to provide additional guidance.

Your medical professional liability coverage from Curi includes a Broad Regulatory Protection Endorsement. This endorsement provides coverage for legal expenses associated with responding to a medical board complaint. However, this coverage does not include coverage for legal expenses to defend against criminal charges. If a complaint or investigation is instituted against you, your practice, or one of your providers by a licensing body, please call 800-328-5532 and ask to speak to a Broad Regulatory Claims Specialist for additional coverage information.

State laws restricting or banning abortion will most directly impact physicians providing abortion care, but depending on the wording of specific state laws, abortion restrictions or prohibitions also may affect physicians in other specialties. For example, a state law with abortion restrictions starting at fertilization may affect physicians providing in vitro fertilization services. Emergency room physicians also may need to address emergency medical conditions involving pregnant patients, such as ectopic pregnancy, complications of pregnancy loss, and emergent hypertensive disorders. A physician providing chemotherapy to pregnant patients also may need to consider the impact of state laws restricting or banning abortion. Physicians in all specialties should carefully consider how any state laws restricting or banning abortion could affect the types of care they provide.

If you have a question about practice operations, please call 800-328-5532 to speak with a risk advisor. If you have a question about insurance coverage, please contact your broker or your Curi Member Service representative/underwriter at 800-328-5532 if you do not have a broker.