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Supreme Court Overturns Roe and Casey

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In an opinion authored by Justice Samuel Alito and joined by four of the other conservatives, The Supreme Court in Dobbs v. Jackson Women’s Health Organization held that there is no federal constitutional right to an abortion, and that the decision to regulate abortion should be governed exclusively by state law. In doing so, the decision overruled The Supreme Court’s previous decisions of Roe v. Wade decided in 1973 and Planned Parenthood of Southeastern PA v. Casey decided in 1992.

The Dobbs opinion tracks closely with the previous leaked draft opinion from The Supreme Court and includes concurring opinions from Justice Thomas, Justice Kavanaugh, and Chief Justice Roberts, as well as a dissent by Justices Breyer, Sotomayor and Kagan.

The Chief Justice concurred in the judgment but wrote separately to indicate that he would have only upheld the Mississippi law, and stopped short of overturning the precedents of Roe and Casey.

Decision changes landscape of reproductive health care rights

The Court’s decision, which was effectively 6-3 given the Chief Justice’s concurrence in the judgment, changes the landscape of reproductive health care rights throughout the country.

A number of states have passed so-called “trigger laws” that would automatically outlaw abortion almost immediately in the event The Supreme Court were to overrule Roe and Casey.

Additionally, a number of states have indicated that they would call their legislatures back to special session to outlaw abortion if The Supreme Court were to take this action. These developments are unfolding rapidly even in the hours after the Dobbs opinion was announced on Friday morning.

Finally, there are also pre-Roe laws still on the books in some states that were never repealed after Roe and instead have lain dormant since the 1970s. These laws are no longer be unenforceable (at least not on the basis that the Roe decision made them unconstitutional), and at least some states have already signaled they plan to begin enforcing their pre-Roe abortion bans immediately.

Concurring opinions explore future impacts of decision

Also noteworthy in the health care regulatory space, in his concurring opinion, Justice Thomas urged The Court to reconsider its substantive due process precedents. Among those precedents Justice Thomas identified by name are The Court’s 1965 opinion in Griswold v. Connecticut that prohibited states from limiting access to birth control medication.

Justice Kavanaugh in his concurring opinion took the opposite view from Justice Thomas and stated specifically that the Dobbs opinion did not “threaten or cast doubt on” the other substantive due process precedents. He also indicated that he did not consider it constitutional for a state to attempt to prevent a resident from traveling to another state to obtain an abortion or apply any newly constitutional abortion laws retroactively to actions performed before the Court’s opinion in Dobbs was issued.

Decision leaves unanswered questions for providers

These wide-ranging implications for all kinds of health care facilities, systems and practitioners are very much in flux at the moment.  Our Reed Smith Reproductive Health Working Group has been asking a number of questions about how The Court’s opinion will impact health care providers across the spectrum. The results of that analysis are available below, and more is forthcoming:

Unanswered Questions Part I: Pharmacies

Unanswered Questions Part II: Health Care Providers

Unanswered Questions Part III: Fertility

Unanswered Questions Part IV: Employee Benefits

Follow the Working Group and Sign up for Alerts here.

Reed Smith will continue to monitor any state or federal responses to this decision. If you have any questions about this topic or how the Court’s opinion will affect your organization legally, please reach out to the health care lawyers at Reed Smith.

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