Post-Roe Mitigation Checklist - McDermott Will & Emery

Post-Roe Mitigation Checklist



The Dobbs decision has triggered widespread legal uncertainty concerning the delivery of reproductive and family planning services. About half of the U.S. states already prohibit or heavily limit abortion services or are expected to prohibit or limit abortion services in short order. These laws largely regulate healthcare providers and patients, although some state laws explicitly capture other parties that “aid and abet” the violation of these laws. Many of these state laws are criminal in nature and other criminal aiding, abetting or conspiracy theories may also be relevant. However, state abortion laws are being challenged in state and federal courts on various legal grounds, the U.S. President signed an executive order on July 8, 2022, aimed at protecting abortion rights, and many states are following suit by passing legislation to protect patients who seek abortion services.

Any organization whose operations touch on reproductive health services in any way (e.g., healthcare delivery organizations, including fertility providers, investors, payors, insurance carriers, employers that provide such benefits) should immediately examine whether the organization is at risk of violating these state laws and the extent to which the organization can address or mitigate this risk. This requires examining the precise nature of the organization’s services and data, geographic footprint, corporate structure and organizational priorities.

We are here to help. Our multi-disciplinary team of lawyers have the latest information and practical steps for navigating the complex issues surrounding a post-Roe reality. We are working closely with clients across industry sectors to answer their most pressing questions and to develop customized compliance and risk mitigation