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Out of the woods?: Provider liability for medication abortion

7/30/24

By: Lisa R. House and Cecilia A. Walker

While the Supreme Court of the United States has failed to ban or restrict medication abortion in FDA v. Alliance for Hippocratic Medicine, providers, professionals, and insurers are far from being out of the woods for potential criminal and civil liability. 

In the wake of the Court’s 2022 decision of Dobbs v. Jackson Women’s overturning the Court’s 1973 seminal abortion access case in Roe v. Wade, much of the forty years of legal framework built atop Roe’s foundation, designed to accommodate, regulate, and provide abortion in the states, remain tepidly aloft while new laws to regulate or restrict abortion are built. Since Dobbs, twenty-one states have banned or limited access to abortion with the passage of new state laws or by the revival of some pre-Roe precedent limitation. 

For the first time since 2022, the Supreme Court heard a challenge to abortion in FDA v. Alliance for Hippocratic Medicine where a professional association of doctors brought suit against the Food and Drug Administration’s approval of mifepristone, a medication used in two-thirds of all abortions in the U.S. The Court stopped short of deciding the merits of the case and ruled unanimously that while plaintiffs had “sincere legal, moral, ideological, and policy objections to elective abortion and to FDA’s relaxed regulation of mifepristone” those objections alone were not enough to rise to having a real case or controversy. For now, mifepristone and access to medication abortion is not restricted at the federal level, but the merits of access to patients could very well be decided in a later case if a plaintiff brings forth suit with standing. 

However, the Court’s present rulings in both Dobbs and FDA v. Alliance have created more questions than answers, particularly those of potential criminal and civil liability for physicians and medical providers at the state level. Differences in state law can create exposure not only on the question of if an abortion can be performed but also on when, how, by who and for whom an abortion can be performed. In states like Maryland and North Carolina, qualified health care professionals, like nurse practitioners, can provide mifepristone to patients, but states like Georgia and Florida only allow doctors to provide and prescribe abortion medication. While legislators in states like New Mexico and Maryland have provided “shield laws” to protect abortion providers from investigations by other states for prescribing abortions to patients, legislators in some states like Texas and Oklahoma have proposed laws that would provide more ways to impose both criminal and civil liability on those that provide or assist those that provide abortions outside the regulations of their state and even across state lines.

These seemingly small state level nuances of the who, how, and when of abortion open the door to potential liability when a provider or professional fails to follow the tightly held state lines on a medical procedure that spurs social and political ire on both sides of the aisle. Legal challenges abound from those in favor of and opposed to abortion, and without federal framework or a more definitive decision in place from the Supreme Court in the near future, changes to state statutory schemes will make parsing through those changing regulations and existing law more difficult for providers, especially those that operate in multiple states. Now more than ever, it is imperative that physicians, providers, and those that insure them implement and update policies and procedures with an eye for both where they provide their services and from what states their patients reside in order to protect their practice and evaluate exposure to changing legal risks. 

For more information, please contact Lisa R. House at lisa.house@fmglaw.com, Cecilia A. Walker at cecilia.walker@fmglaw.com, or your local FMG attorney.