Post-Roe Criminal Implications for Multi-State Entities

Alerts / July 11, 2022

The U.S. Supreme Court’s decision in Dobbs, State Health Officer of the Mississippi Department of Health, et al. v. Jackson Women’s Health Organization, et al.[1] has created profound uncertainty for individuals and entities attempting to navigate a web of inconsistent and often conflicting federal and state laws. One key question is the impact of individual state laws on the provision of health-related services or benefits across state lines, particularly where state laws provide for criminal liability.

Many companies and employee benefit plans provide healthcare benefits relating to abortion to their employees or members. To the extent such employees or members are located in a state that criminalizes abortion, it is important to consult counsel to analyze the potential impact of state criminal laws. The Dobbs decision may also impact travel and lodging subsidies or other benefits that cover the costs of travel and lodging for medical care, including abortion services, that requires out-of-state travel.

There is a patchwork of state laws criminalizing abortion. Nine states (Alabama, Arizona, Arkansas, Michigan, Mississippi, Oklahoma, Texas, West Virginia and Wisconsin) have pre-Roe dormant abortion bans, sometimes called zombie laws. In Texas, for example, one dormant statute imposes felony criminal liability on any person who “furnishes the means for procuring an abortion knowing the purpose intended.”[2] The Texas Supreme Court is currently considering the viability and enforceability of this statute.

Additionally, a number of states, including Texas, enacted post-Roe abortion bans, or “trigger laws,” that go into effect to restrict or ban abortion following Dobbs. The practical application of these laws will depend on their specific terms, including the definitions of precisely what conduct is prohibited and whom the statute intends to penalize. For example, the Texas trigger law defines abortion as “using or prescribing an instrument, a drug, a medicine, or any other substance, device, or means with the intent to cause the death of an unborn child of a woman known to be pregnant,”[3] with “unborn child” defined to mean “an individual living member of the homo sapiens species from fertilization until birth, including the entire embryonic and fetal stages of development.”[4] The statute’s definition of abortion specifically excludes birth control devices, oral contraceptives, miscarriage care, ectopic pregnancy care or medical care with the intent to save or preserve the life of an unborn child. Texas law does not impose legal liability on an abortion seeker, and it includes language aimed at protecting the life of the pregnant person.

Finally, Idaho, Oklahoma and Texas have adopted laws that allow private citizens to file civil lawsuits with significant financial penalties against anyone suspected of performing or inducing an abortion or anyone who “aids and abets” an abortion. These laws may raise legal challenges concerning both surgical abortions and drug-induced abortions.

While a state’s criminal jurisdiction is limited to its own borders, several states have indicated they will seek to limit or interfere with their citizens’ ability to obtain an abortion in another state by criminalizing related conduct that takes place within the abortion seeker’s state of residence. A pregnant person may have a constitutional right to interstate travel to obtain an abortion, as noted by Justice Kavanaugh in his concurrence to Dobbs (“For example, may a State bar a resident of that State from traveling to another State to obtain an abortion? In my view, the answer is no based on the constitutional right to interstate travel.”[5]).

Those who participate in the exercise of such a right may be insulated from state conspiracy, derivative liability, or similar statutes if the abortion is permissible (and thus not an unlawful act) in the state where it occurs. But such a right might not eliminate potential exposure for funding or other assistance provided to the abortion seeker in their state of residence to the extent “aiding or abetting” or “furnishing the means” is itself defined as a crime.

Assessing these risks will require consideration of a number of specific factors, including the precise statutory definition of the crime alleged to have been committed, the validity of the state’s purported exercise of jurisdiction and other potentially countervailing laws and rights. In addition to seeking the advice of employee benefits attorneys, companies should consult with white collar counsel before adopting new policies or taking action that could implicate these laws in states where abortion is criminalized.

There presumably will be extensive litigation involving these state statutes, including limitations that may be imposed by federal statutory or constitutional law, including potentially preemptive federal statutes and laws related to freedom of religion and freedom of speech. These issues, however, are unlikely to be resolved in the short term. As these state statutes criminalizing abortion come into effect, companies that house information about their employees’ or members’ healthcare and benefits may receive grand jury subpoenas or other document demands from state prosecutors or regulatory enforcement authorities in those jurisdictions. Companies, as legal entities and not individuals, do not have a Fifth Amendment privilege against self-incrimination and therefore cannot refuse to produce documents or information under an “act of production” privilege. Nevertheless, companies should consult with white collar counsel to consider whether motions to quash such subpoenas or document demands on other grounds may be appropriate. In addition to consulting with privacy counsel on the application of the Health Insurance Portability and Accountability Act and other federal or state limitations on disclosure, there may be scope, physician-patient privilege or other bases that may be explored as a basis to quash.

The Dobbs Decision Task Force and the BakerHostetler White Collar team, which includes former state and federal prosecutors, are available to provide guidance on navigating these varying specific state abortion laws.

Authorship credit: Tracy Cole, Rachel Palmer Hooper and Lauren J. Resnick

[1] 597 U.S. ­            (2022).

[2] Texas Revised Civil Statutes, article 4512.2.

[3] Texas Health & Safety Code §§170A.001(1), 245.002.

[4] Texas Health & Safety Code §170A.001(5).

[5] 597 U.S.              (2022) (Kavanaugh, J., concurring).

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