The Overturning of Roe v. Wade - McDermott Will & Emery


June 24, 2022, the Supreme Court of the United States issued its decision in Dobbs v. Jackson Women’s Health Organization (Dobbs), overturning Roe v. Wade (Roe) and upending 50 years of precedent protecting a woman’s right to privacy in choosing to abort a pregnancy prior to the point of viability. In Dobbs, the Court held that “[t]he Constitution does not confer a right to abortion; Roe and [Planned Parenthood v. Casey (Casey)] [] are overruled; and the authority to regulate abortion is returned to the people and their elected representatives.”

Consistent with the draft majority opinion authored by Justice Samuel Alito that was leaked to Politico in early May, the Court overruled Roe and Casey and held that there is no federal constitutional right to obtain an abortion and that abortion restrictions are subject to rational basis review. This decision leaves individual states free to prohibit and criminalize abortion altogether. Justices Clarence Thomas and Brett Kavanaugh filed concurring opinions. Chief Justice John Roberts filed an opinion concurring in the judgment. Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan filed a dissenting opinion.

The state statute at issue in Dobbs, Mississippi’s Gestational Age Act, provides that “[e]xcept in a medical emergency or in the case of a severe fetal abnormality, a person shall not intentionally or knowingly perform . . . or induce an abortion of an unborn human being if the probable gestational age of the unborn human being has been determined to be greater than fifteen (15) weeks.” Jackson Women’s Health Organization and one of its physicians (the Respondents) challenged the Mississippi law in the US District Court for the Southern District of Mississippi, alleging that it violated precedents establishing a constitutional right to abortion, including Roe and Casey. The district court granted summary judgment in favor of the Respondents and permanently enjoined enforcement of the law, reasoning that Mississippi’s 15-week restriction on abortion violated Roe and Casey, which forbid states to ban abortion pre-viability. The US Court of Appeals for the Fifth Circuit affirmed, after which the case was appealed to the Supreme Court. In a 6-3 opinion, the Supreme Court held that the Mississippi statute at issue is constitutional, Roe and Casey were wrongly decided and that the law is constitutional because it satisfies rational-basis review.

What’s Next
As noted in our recent article, the effect of this decision on US companies cannot be understated. Any organization whose operations touch family planning services in any way (e.g., providers, those that facilitate provider activities, investors, payors, employers that provide family planning benefits and health plan service providers) should immediately examine their precise services, geographic footprint, corporate structure and organizational priorities. This includes not only those providers who furnish pregnancy termination services, but also those that provide advice, operational support or other assistance to providers. Employers, insurers and other health plan service providers that cover or provide access to abortion services or benefits should also immediately evaluate their operations and the potential risks of offering such coverage or access in certain states.

There is a wide variety of state “trigger” and “zombie” laws that arguably took effect today. For those states that require state attorney general or other administrative action, abortion bans will likely be in place within the next two weeks.

Companies that have not already put in place a plan to address post-Roe restrictions on abortions in states where abortion is now banned or significantly restricted should consult with counsel immediately to determine if it is necessary for them to adjust any reproductive health-related services that may result in an abortion or the destruction of an embryo until the full effect of state restrictions on abortions can be carefully evaluated. This strategy should take into account laws that have now taken effect that prohibit and criminalize abortion services. The obvious exception to this advice is with respect to abortions furnished to save the life or otherwise prevent significant harm to a patient.

We will continue to closely monitor the impacts of this decision and provide updates.

In Case You Missed It
Article: Preparing For The Demise Of Roe V. Wade And The Criminalization Of Abortion In Some Us States: Practical Considerations For A Post-Roe World
Webinar: Preparing For The Likely Overturning Of Roe V. Wade: What Providers, Employers, Investors And Other Organizations Need To Know