Client Alert: SCOTUS Overrules Roe v. Wade: Part III: Emerging Issues One Month Post-Dobbs
Publications
July 27, 2022
By: Dawn L. Smalls, Shoba Pillay, Anne Cortina Perry, Alison I. Stein, Isabel Farhi, Andrew J. Plague, Elizabeth M. Powers, A. Lulu Zhang, Dakota C. Foster and Kevin G. Chisolm
In Part I of this series, released in the days after the Dobbs v. Jackson Women’s Health Organization decision issued, we discussed the impact of the decision on American businesses, the risks of which they should be aware, and offered guidance for how companies could proactively respond to the changing legal landscape. In Part II, we outlined the status of abortion across the states in the immediate aftermath of the decision.
As we cross the one-month mark since the US Supreme Court issued Dobbs, the legal, policy, and political battles that will follow are becoming clearer and the extent to which corporations could face potential legal liability or political retaliation is also coming into sharpened focus. In this alert, we provide updates and analyze the implications of:
- Federal Actions: The Biden Administration Is Acting to Protect Reproductive Rights Under Available Federal Laws, Heightening Potential for Federal Conflicts with State Actions – The President’s recent Executive Order and agency action at the FDA, HHS, and FTC signal postDobbs executive branch priorities and areas of concern: namely, medication abortion, and personal health and location data protection.
- State Actions: States Are Acting Swiftly to Implement and Expand Abortion Laws, and State Prosecutors Are Beginning to Announce Their Intentions to Prosecute – Nearly half of states are in the process of passing or implementing laws to severely restrict or ban access to abortion medication and procedures, and are looking for ways to further discourage women from seeking abortions, including by enhancing penalties and expanding the universe of those whom they will hold responsible for soliciting or aiding an abortion. Conversely, many of the states where abortion remains accessible are taking steps to further increase reproductive health care options and to protect individuals traveling for abortions to the extent possible.
- Intersection of Federal and State Efforts: Out-of-State Travel – As states and the federal government act, the critical issue at the forefront will be interstate travel benefits for employees.
As these battle lines are drawn, questions surrounding how and whether civil and criminal liability will attach to companies providing access to reproductive care will continue to arise and evolve.
I. Actions Being Taken Across the Federal Government to Protect Reproductive Health Access
In the absence of a federal constitutional right to abortion, the federal government is limited in its ability to dictate how states treat abortion. Congress could vote on legislation codifying Roe v. Wade—President Biden has stated that he supports a filibuster carve out for such legislation—but even if such a vote occurs, which is uncertain, it is unlikely to be successful. In the meantime, the federal government, including the White House, federal agencies, and some members of Congress, are
engaging in actions to protect access to abortion.
A. Executive Order Protects Reproductive Health Access
On July 8, 2022, President Biden signed an Executive Order protecting access to reproductive health services. The order directs the Department of Health and Human Services (HHS) to protect access to medication abortion, protect access to contraception, and ensure emergency medical care for pregnant patients. HHS will also consider actions under the Health Insurance Portability and Accountability Act (HIPAA) to protect the data of those seeking an abortion; the agency already has issued HIPAA guidance and a how-to guide for consumers on actions they can take to protect their personal data on apps. The order also tasks the Federal Trade Commission (FTC) with evaluating privacy protections for consumers seeking reproductive services.
B. Agency Action Clarifies Reproductive Health Protections
1. Health and Human Services Says Emergency Abortions Protected and Warns of Risk in Failing to Provide Abortion Medication
Following President Biden’s executive order, HHS released clarifying guidance reaffirming that existing federal law preempts state abortion bans when emergency care is needed. The Emergency Medical Treatment and Active Labor Act (EMTALA), which has been law since 1986, requires that emergency departments provide all patients with stabilizing treatment—treatment which the HHS guidance states could include abortion. Additionally, HHS directed a letter to health care providers, telling providers that EMTALA protects them when they make clinical judgments and provide stabilizing medical treatment to
their pregnant patients—regardless of state restrictions.
In response to this guidance, Texas sued HHS for declaratory relief and to preliminarily and permanently enjoin the guidance in the Northern District of Texas, arguing that the guidance exceeds HHS’s statutory and constitutional authority, along with other challenges under the Administrative Procedure Act.[5] The state did not file for a temporary restraining order, and no additional briefing on the preliminary injunction has been filed as of the date of this alert.
HHS also recently issued guidance to pharmacies, saying that refusing to issue abortion medication could violate provisions of the Affordable Care Act and the Rehabilitation Act of 1973.
2. Federal Drug Administration Allows for Abortion Pills by Mail; States’ Ability to Restrict Pills Unclear
The Federal Drug Administration (FDA) has also taken action to protect abortion access. In December 2021, the agency began allowing patients to receive medication abortion by mail, eliminating a previous requirement that the individual appear in person to receive the medication from their provider. The agency now allows for telemedicine appointments with providers, who then prescribe abortion pills that arrive by mail. However, at least 19 states ban these virtual visits. This conflict sets up another battlefield for abortion access: Can a state regulate abortion pills more restrictively than the FDA? The Department of Justice (DOJ) has previously backed the FDA, saying that states may not ban abortion pills based on disagreements with the agency.
GenBioPro, a company which sells mifepristone, an abortion medication, sued Mississippi in federal court in 2020 over its ban on telemedicine appointments for abortions, claiming that Mississippi’s ban illegally preempted the authority of the FDA.[6] On June 30, after Dobbs, GenBioPro explained in supplemental briefing that its lawsuit is based on the Supremacy and Commerce Clauses of the Constitution, not the Fourteenth Amendment (the argument foreclosed by Dobbs).[7] The judge has not yet issued a ruling in the Mississippi case. This is likely only the first of multiple cases that reckon with the intersection between state law and agency regulation of abortion.
3. Federal Trade Commission Commits to Protecting Health Privacy
Following Biden’s executive order, the FTC released a blog post committing to protecting consumer privacy data, with an emphasis on health data and location data. The FTC said it will “vigorously enforce the law” if the agency finds illegal conduct exploiting American consumers’ location, health, or other sensitive data. It also said that past FTC enforcement actions—such as the action against Flo Health, in which the FTC settled a case to protect data privacy on a period tracking app—would “provide a roadmap” for companies looking to comply with the law, implying that it plans to proceed forward with such enforcement under its normal guidance and procedures.
C. Congressional Efforts to Protect Reproductive Health Access
Democrats in Congress have also been taking steps to protect abortion access, including the Senate Judiciary Committee convening a hearing on July 12, 2022, focused on the legal implications of Dobbs. Democratic witnesses testified about the dangers of outlawing abortion care in the country and the disproportionate impact it will have on marginalized communities—specifically women of color and women with lower income—and voiced concerns about the maternal mortality rate post-Dobbs and the need for stronger data protections to safeguard abortion providers and patients. Conversely, certain Republican Members and witnesses celebrated the Dobbs decision as a victory for the “pro-life” movement and raised concerns about increased violence and intimidation against pro-life activists, pregnancy crisis centers, and pro-life public figures.
On July 14, 2022, the House Committee on Oversight and Reform also convened a hearing regarding the impact of Dobbs, similarly discussing the harm caused by criminalizing abortion, its disproportionate impact on vulnerable communities, and possible impact on reproductive healthcare generally.
Congress is also considering legislation on the abortion-rights issue, though no introduced bills are expected to succeed right now, including pro-choice legislation codifying a federal right to abortion and pro-life legislation banning abortion nationwide. Protecting abortion-seekers’ right to travel and data privacy has become a legislative focus for Democrats: for example, the My Body, My Data Act of 2022 would protect personal data on sexual and reproductive health data collected by apps, cellphones, and search engines. Among its provisions is a requirement that entities obtain individual consent to data’s collection and use. The bill also provides for a right of deletion, requiring companies to remove personal reproductive health or sexual health information, including information obtained from third parties, upon request by an individual. Democratic lawmakers have also sent letters to different private companies, including data brokers, pressuring them to increase their data privacy protections.
The Biden administration, relevant agencies, and Congressional supporters of reproductive rights have taken steps toward protecting abortion access (in particular with respect to medication abortion and emergency reproductive healthcare) and to protecting individuals’ private health information with specific emphasis on health and location data, including the potential for a “right to deletion” with respect to his information. Although the affirmative activity around reproductive rights at the federal level has been in support of reproductive rights, the action at the state level is decidedly more mixed.
II. Update on State Actions
In our Part II alert titled “Outlining the Threat to Reproductive Rights Across the United States,” we highlighted the then-current state of abortion bans in states that had abortion bans in effect or that were expected to be in effect and enforced soon. In the weeks since then, lawmakers on both sides of the political divide have acted, either to further limit abortion access or to shore up protections for that access. Lawmakers in states with effective abortion bans are setting the stage for abortion prosecutions by calling for vigorous enforcement of the state’s bans or by increasing restrictions to make prosecutions easier.
A. Legislation Banning or Strengthening Existing Bans
While abortion is still expected to be banned or severely restricted in about half of all states, in the month since Dobbs there have been shifts in the number of states with abortion bans currently in effect, abortion bans that have been stayed in courts, and abortion bans that have not yet gone into effect:
- Abortion Bans or Effective Bans Currently or Soon to Be in Effect in Fifteen States:
- “Trigger laws” (abortion bans set into motion by the overturning of Roe) have gone into effect to ban abortion in Alabama, Arkansas, Mississippi, Missouri, Oklahoma, South Dakota, and Wyoming (North Dakota will be in effect on July 28, 2022.)
- “Zombie” laws are being used to ban abortion while awaiting trigger laws or further state action (including through litigation) in Texas and Wisconsin.
- Effective abortion bans, which ban abortion beginning so early in pregnancy that they act as a ban, are in effect in Florida (15-week), Georgia (6-week), Ohio (6-week), South Carolina (6-week), Tennessee (6-week), and Texas (6-week).
- Abortion Bans Have Been Temporarily Blocked by Courts in Five States: Arizona, Kentucky,
Louisiana, Utah, and West Virginia. - Abortion Bans in Place But Not Yet Effective in Three States: Trigger laws in Idaho, Tennessee, and Texas have not yet taken effect due to procedural delays related to the Supreme Court’s official judgment. These laws are expected to take effect on August 25, 2022.
- States Expected to Enact Abortion Bans: Several other states that did not have total or near-total bans due to Roe—including Iowa, Indiana, and Kansas—are expected to pass such bans soon via legislation or voter referendum.[11] South Carolina, which already has a six-week ban, is also looking to institute a total ban.
Immediately upon the issuance of Dobbs, the Texas Attorney General issued an advisory noting that criminal prosecutors could “immediately” enforce Texas abortion laws. A number of state attorneys general have explicitly called for criminal investigations and enforcement action against people who violate state abortion bans. Missouri Attorney General Eric Schmitt has vowed to prosecute any municipal body that uses public funds to support abortions—and has indeed filed suit against St. Louis —while Oklahoma Attorney General John O'Connor stated that he would immediately pursue action against anyone who “solicit[s]” an abortion, including companies funding out of state abortion travel. In Arizona, Attorney General Mark Brnovich has requested from a court the prosecutorial power for himself and local prosecutors against doctors who provide abortions.
States prohibiting abortion are also intensifying their existing positions, pursuing measures that would make the penalties for assisting with an abortion stronger and would expand the group of individuals and entities who could be held responsible under those statutes. For example, on July 7, 2022, members of the Texas Freedom Caucus released a letter both accusing law firm Sidley Austin LLP, a Chicago law firm with operations in Texas, of assisting abortions in contravention of Texas state law and laying out proposed legislation to make Texas’ bans more punitive. The proposed legislation would prohibit employers in Texas from paying for abortions or reimbursing abortion-related expenses regardless of where the abortion occurs, create a private right of action against anyone who pays for, or pays the costs associated with an abortion performed on a Texas resident, require Texas to disbar a lawyer who violates an abortion statute including by aiding and abetting an abortion, empower district attorneys from throughout the state to prosecute abortion-related crimes when the local district attorney does not, and eliminate the three-year statute of limitations on abortion-related crimes. Similarly, in Idaho, lawmakers are discussing legislation to eliminate exceptions for rape and incest and
to target IUDs. However, both the Texas and Idaho state legislatures have concluded their 2022 legislative calendars and will not return until January 2023. These proposals are a roadmap for what we can expect in 2023 legislative sessions, not immediate threats.
B. Laws Safeguarding or Strengthening Abortion Access
On the other side of the aisle, some states are moving to further safeguard abortion access.
Lawmakers and abortion advocates in California, New York, Michigan, and Vermont, for example, are working to more explicitly enshrine protection for abortion rights in their state constitutions. Blue states are also increasing abortion access by expanding providers and funding. New laws in Delaware[12] and Connecticut[13] expand the type of providers who are permitted to perform abortion care, authorizing certified nurse practitioners and certain physician assistants to perform abortions, while Oregon has appropriated $15 million to serve abortion seekers and providers. Laws shoring up abortion access are not, however, immune from constitutional scrutiny. To the extent that such laws seek to shield one state’s citizens from another state’s laws, they could violate the Constitution’s Full Faith and Credit clause.
III. Key Issue at the Intersection of Federal and State Level Efforts: Interstate Travel
The importance of interstate travel in connection with the potential provision of abortion care creates complicated legal issues juxtaposing the interests of states with differing abortion laws, under an overlay of potential federal Constitutional or legislative control.
A. Some States Seek to Prosecute Across State Lines; Other States Refuse to Extradite
Many states, including Arkansas and South Dakota, are reportedly considering draft legislation,
assisted by organizations such as the Thomas More Society and the National Association of Christian Lawmakers, that would permit private citizens to sue any individual who helps a pregnant person cross state lines for an abortion. According to The Washington Post, the legislation’s legal enforcement mechanism—allowing private citizens to sue via civil litigation—is similar to that of Texas Senate Bill 8, Texas’ “Fetal Heartbeat Law” that was passed in 2021 and empowered private citizens to be “bounty hunters” to enforce the law. Lawmakers in Missouri introduced such a law earlier this year.[14]
At least six states have enacted measures to prevent extradition for abortion care. In several, this took the form of legislation. For instance, both Delaware and Connecticut have enacted laws prohibiting or limiting the extradition of individuals in connection with abortion care; the Massachusetts House approved a similar bill. Similarly, California recently enacted a law protecting those in California from civil liability for providing, aiding, or receiving abortion care in-state.
Four states’ governors signed executive orders refusing extradition for abortion-seekers and providers and prohibiting state agencies from participating in other states’ investigations into abortion-seekers and providers, or both: Massachusetts, North Carolina,[15] Michigan, and Colorado (action by both the Governor and the Secretary of State). While these state actions prevent extradition, there may not be protection from state punishment once the abortion seeker or provider returns or travels to the prosecuting state.
As we previously noted, the constitutional issues regarding the ability of states to legislate outside their borders may be effected by an upcoming decision by the Supreme Court in National Pork Producers Council v. Ross. However, even if the Court relaxes rules around extraterritoriality, with other states taking steps to prohibit extradition, it is unclear which state’s law would apply.
B. Congressional Efforts to Protect Interstate Travel
Congressional efforts to guarantee the federal right to interstate travel have faced limited success. On July 15, 2022, the United States House of Representatives passed a bill to protect people who travel out-of-state to access abortion. The bill, titled the Ensuring Access t
As we cross the one-month mark since the US Supreme Court issued Dobbs, the legal, policy, and political battles that will follow are becoming clearer and the extent to which corporations could face potential legal liability or political retaliation is also coming into sharpened focus. In this alert, we provide updates and analyze the implications of:
- Federal Actions: The Biden Administration Is Acting to Protect Reproductive Rights Under Available Federal Laws, Heightening Potential for Federal Conflicts with State Actions – The President’s recent Executive Order and agency action at the FDA, HHS, and FTC signal postDobbs executive branch priorities and areas of concern: namely, medication abortion, and personal health and location data protection.
- State Actions: States Are Acting Swiftly to Implement and Expand Abortion Laws, and State Prosecutors Are Beginning to Announce Their Intentions to Prosecute – Nearly half of states are in the process of passing or implementing laws to severely restrict or ban access to abortion medication and procedures, and are looking for ways to further discourage women from seeking abortions, including by enhancing penalties and expanding the universe of those whom they will hold responsible for soliciting or aiding an abortion. Conversely, many of the states where abortion remains accessible are taking steps to further increase reproductive health care options and to protect individuals traveling for abortions to the extent possible.
- Intersection of Federal and State Efforts: Out-of-State Travel – As states and the federal government act, the critical issue at the forefront will be interstate travel benefits for employees.
As these battle lines are drawn, questions surrounding how and whether civil and criminal liability will attach to companies providing access to reproductive care will continue to arise and evolve.
I. Actions Being Taken Across the Federal Government to Protect Reproductive Health Access
In the absence of a federal constitutional right to abortion, the federal government is limited in its ability to dictate how states treat abortion. Congress could vote on legislation codifying Roe v. Wade—President Biden has stated that he supports a filibuster carve out for such legislation—but even if such a vote occurs, which is uncertain, it is unlikely to be successful. In the meantime, the federal government, including the White House, federal agencies, and some members of Congress, are
engaging in actions to protect access to abortion.
A. Executive Order Protects Reproductive Health Access
On July 8, 2022, President Biden signed an Executive Order protecting access to reproductive health services. The order directs the Department of Health and Human Services (HHS) to protect access to medication abortion, protect access to contraception, and ensure emergency medical care for pregnant patients. HHS will also consider actions under the Health Insurance Portability and Accountability Act (HIPAA) to protect the data of those seeking an abortion; the agency already has issued HIPAA guidance and a how-to guide for consumers on actions they can take to protect their personal data on apps. The order also tasks the Federal Trade Commission (FTC) with evaluating privacy protections for consumers seeking reproductive services.
B. Agency Action Clarifies Reproductive Health Protections
1. Health and Human Services Says Emergency Abortions Protected and Warns of Risk in Failing to Provide Abortion Medication
Following President Biden’s executive order, HHS released clarifying guidance reaffirming that existing federal law preempts state abortion bans when emergency care is needed. The Emergency Medical Treatment and Active Labor Act (EMTALA), which has been law since 1986, requires that emergency departments provide all patients with stabilizing treatment—treatment which the HHS guidance states could include abortion. Additionally, HHS directed a letter to health care providers, telling providers that EMTALA protects them when they make clinical judgments and provide stabilizing medical treatment to
their pregnant patients—regardless of state restrictions.
In response to this guidance, Texas sued HHS for declaratory relief and to preliminarily and permanently enjoin the guidance in the Northern District of Texas, arguing that the guidance exceeds HHS’s statutory and constitutional authority, along with other challenges under the Administrative Procedure Act.[5] The state did not file for a temporary restraining order, and no additional briefing on the preliminary injunction has been filed as of the date of this alert.
HHS also recently issued guidance to pharmacies, saying that refusing to issue abortion medication could violate provisions of the Affordable Care Act and the Rehabilitation Act of 1973.
2. Federal Drug Administration Allows for Abortion Pills by Mail; States’ Ability to Restrict Pills Unclear
The Federal Drug Administration (FDA) has also taken action to protect abortion access. In December 2021, the agency began allowing patients to receive medication abortion by mail, eliminating a previous requirement that the individual appear in person to receive the medication from their provider. The agency now allows for telemedicine appointments with providers, who then prescribe abortion pills that arrive by mail. However, at least 19 states ban these virtual visits. This conflict sets up another battlefield for abortion access: Can a state regulate abortion pills more restrictively than the FDA? The Department of Justice (DOJ) has previously backed the FDA, saying that states may not ban abortion pills based on disagreements with the agency.
GenBioPro, a company which sells mifepristone, an abortion medication, sued Mississippi in federal court in 2020 over its ban on telemedicine appointments for abortions, claiming that Mississippi’s ban illegally preempted the authority of the FDA.[6] On June 30, after Dobbs, GenBioPro explained in supplemental briefing that its lawsuit is based on the Supremacy and Commerce Clauses of the Constitution, not the Fourteenth Amendment (the argument foreclosed by Dobbs).[7] The judge has not yet issued a ruling in the Mississippi case. This is likely only the first of multiple cases that reckon with the intersection between state law and agency regulation of abortion.
3. Federal Trade Commission Commits to Protecting Health Privacy
Following Biden’s executive order, the FTC released a blog post committing to protecting consumer privacy data, with an emphasis on health data and location data. The FTC said it will “vigorously enforce the law” if the agency finds illegal conduct exploiting American consumers’ location, health, or other sensitive data. It also said that past FTC enforcement actions—such as the action against Flo Health, in which the FTC settled a case to protect data privacy on a period tracking app—would “provide a roadmap” for companies looking to comply with the law, implying that it plans to proceed forward with such enforcement under its normal guidance and procedures.
C. Congressional Efforts to Protect Reproductive Health Access
Democrats in Congress have also been taking steps to protect abortion access, including the Senate Judiciary Committee convening a hearing on July 12, 2022, focused on the legal implications of Dobbs. Democratic witnesses testified about the dangers of outlawing abortion care in the country and the disproportionate impact it will have on marginalized communities—specifically women of color and women with lower income—and voiced concerns about the maternal mortality rate post-Dobbs and the need for stronger data protections to safeguard abortion providers and patients. Conversely, certain Republican Members and witnesses celebrated the Dobbs decision as a victory for the “pro-life” movement and raised concerns about increased violence and intimidation against pro-life activists, pregnancy crisis centers, and pro-life public figures.
On July 14, 2022, the House Committee on Oversight and Reform also convened a hearing regarding the impact of Dobbs, similarly discussing the harm caused by criminalizing abortion, its disproportionate impact on vulnerable communities, and possible impact on reproductive healthcare generally.
Congress is also considering legislation on the abortion-rights issue, though no introduced bills are expected to succeed right now, including pro-choice legislation codifying a federal right to abortion and pro-life legislation banning abortion nationwide. Protecting abortion-seekers’ right to travel and data privacy has become a legislative focus for Democrats: for example, the My Body, My Data Act of 2022 would protect personal data on sexual and reproductive health data collected by apps, cellphones, and search engines. Among its provisions is a requirement that entities obtain individual consent to data’s collection and use. The bill also provides for a right of deletion, requiring companies to remove personal reproductive health or sexual health information, including information obtained from third parties, upon request by an individual. Democratic lawmakers have also sent letters to different private companies, including data brokers, pressuring them to increase their data privacy protections.
The Biden administration, relevant agencies, and Congressional supporters of reproductive rights have taken steps toward protecting abortion access (in particular with respect to medication abortion and emergency reproductive healthcare) and to protecting individuals’ private health information with specific emphasis on health and location data, including the potential for a “right to deletion” with respect to his information. Although the affirmative activity around reproductive rights at the federal level has been in support of reproductive rights, the action at the state level is decidedly more mixed.
II. Update on State Actions
In our Part II alert titled “Outlining the Threat to Reproductive Rights Across the United States,” we highlighted the then-current state of abortion bans in states that had abortion bans in effect or that were expected to be in effect and enforced soon. In the weeks since then, lawmakers on both sides of the political divide have acted, either to further limit abortion access or to shore up protections for that access. Lawmakers in states with effective abortion bans are setting the stage for abortion prosecutions by calling for vigorous enforcement of the state’s bans or by increasing restrictions to make prosecutions easier.
A. Legislation Banning or Strengthening Existing Bans
While abortion is still expected to be banned or severely restricted in about half of all states, in the month since Dobbs there have been shifts in the number of states with abortion bans currently in effect, abortion bans that have been stayed in courts, and abortion bans that have not yet gone into effect:
- Abortion Bans or Effective Bans Currently or Soon to Be in Effect in Fifteen States:
- “Trigger laws” (abortion bans set into motion by the overturning of Roe) have gone into effect to ban abortion in Alabama, Arkansas, Mississippi, Missouri, Oklahoma, South Dakota, and Wyoming (North Dakota will be in effect on July 28, 2022.)
- “Zombie” laws are being used to ban abortion while awaiting trigger laws or further state action (including through litigation) in Texas and Wisconsin.
- Effective abortion bans, which ban abortion beginning so early in pregnancy that they act as a ban, are in effect in Florida (15-week), Georgia (6-week), Ohio (6-week), South Carolina (6-week), Tennessee (6-week), and Texas (6-week).
- Abortion Bans Have Been Temporarily Blocked by Courts in Five States: Arizona, Kentucky,
Louisiana, Utah, and West Virginia. - Abortion Bans in Place But Not Yet Effective in Three States: Trigger laws in Idaho, Tennessee, and Texas have not yet taken effect due to procedural delays related to the Supreme Court’s official judgment. These laws are expected to take effect on August 25, 2022.
- States Expected to Enact Abortion Bans: Several other states that did not have total or near-total bans due to Roe—including Iowa, Indiana, and Kansas—are expected to pass such bans soon via legislation or voter referendum.[11] South Carolina, which already has a six-week ban, is also looking to institute a total ban.
Immediately upon the issuance of Dobbs, the Texas Attorney General issued an advisory noting that criminal prosecutors could “immediately” enforce Texas abortion laws. A number of state attorneys general have explicitly called for criminal investigations and enforcement action against people who violate state abortion bans. Missouri Attorney General Eric Schmitt has vowed to prosecute any municipal body that uses public funds to support abortions—and has indeed filed suit against St. Louis —while Oklahoma Attorney General John O'Connor stated that he would immediately pursue action against anyone who “solicit[s]” an abortion, including companies funding out of state abortion travel. In Arizona, Attorney General Mark Brnovich has requested from a court the prosecutorial power for himself and local prosecutors against doctors who provide abortions.
States prohibiting abortion are also intensifying their existing positions, pursuing measures that would make the penalties for assisting with an abortion stronger and would expand the group of individuals and entities who could be held responsible under those statutes. For example, on July 7, 2022, members of the Texas Freedom Caucus released a letter both accusing law firm Sidley Austin LLP, a Chicago law firm with operations in Texas, of assisting abortions in contravention of Texas state law and laying out proposed legislation to make Texas’ bans more punitive. The proposed legislation would prohibit employers in Texas from paying for abortions or reimbursing abortion-related expenses regardless of where the abortion occurs, create a private right of action against anyone who pays for, or pays the costs associated with an abortion performed on a Texas resident, require Texas to disbar a lawyer who violates an abortion statute including by aiding and abetting an abortion, empower district attorneys from throughout the state to prosecute abortion-related crimes when the local district attorney does not, and eliminate the three-year statute of limitations on abortion-related crimes. Similarly, in Idaho, lawmakers are discussing legislation to eliminate exceptions for rape and incest and
to target IUDs. However, both the Texas and Idaho state legislatures have concluded their 2022 legislative calendars and will not return until January 2023. These proposals are a roadmap for what we can expect in 2023 legislative sessions, not immediate threats.
B. Laws Safeguarding or Strengthening Abortion Access
On the other side of the aisle, some states are moving to further safeguard abortion access.
Lawmakers and abortion advocates in California, New York, Michigan, and Vermont, for example, are working to more explicitly enshrine protection for abortion rights in their state constitutions. Blue states are also increasing abortion access by expanding providers and funding. New laws in Delaware[12] and Connecticut[13] expand the type of providers who are permitted to perform abortion care, authorizing certified nurse practitioners and certain physician assistants to perform abortions, while Oregon has appropriated $15 million to serve abortion seekers and providers. Laws shoring up abortion access are not, however, immune from constitutional scrutiny. To the extent that such laws seek to shield one state’s citizens from another state’s laws, they could violate the Constitution’s Full Faith and Credit clause.
III. Key Issue at the Intersection of Federal and State Level Efforts: Interstate Travel
The importance of interstate travel in connection with the potential provision of abortion care creates complicated legal issues juxtaposing the interests of states with differing abortion laws, under an overlay of potential federal Constitutional or legislative control.
A. Some States Seek to Prosecute Across State Lines; Other States Refuse to Extradite
Many states, including Arkansas and South Dakota, are reportedly considering draft legislation,
assisted by organizations such as the Thomas More Society and the National Association of Christian Lawmakers, that would permit private citizens to sue any individual who helps a pregnant person cross state lines for an abortion. According to The Washington Post, the legislation’s legal enforcement mechanism—allowing private citizens to sue via civil litigation—is similar to that of Texas Senate Bill 8, Texas’ “Fetal Heartbeat Law” that was passed in 2021 and empowered private citizens to be “bounty hunters” to enforce the law. Lawmakers in Missouri introduced such a law earlier this year.[14]
At least six states have enacted measures to prevent extradition for abortion care. In several, this took the form of legislation. For instance, both Delaware and Connecticut have enacted laws prohibiting or limiting the extradition of individuals in connection with abortion care; the Massachusetts House approved a similar bill. Similarly, California recently enacted a law protecting those in California from civil liability for providing, aiding, or receiving abortion care in-state.
Four states’ governors signed executive orders refusing extradition for abortion-seekers and providers and prohibiting state agencies from participating in other states’ investigations into abortion-seekers and providers, or both: Massachusetts, North Carolina,[15] Michigan, and Colorado (action by both the Governor and the Secretary of State). While these state actions prevent extradition, there may not be protection from state punishment once the abortion seeker or provider returns or travels to the prosecuting state.
As we previously noted, the constitutional issues regarding the ability of states to legislate outside their borders may be effected by an upcoming decision by the Supreme Court in National Pork Producers Council v. Ross. However, even if the Court relaxes rules around extraterritoriality, with other states taking steps to prohibit extradition, it is unclear which state’s law would apply.
B. Congressional Efforts to Protect Interstate Travel
Congressional efforts to guarantee the federal right to interstate travel have faced limited success. On July 15, 2022, the United States House of Representatives passed a bill to protect people who travel out-of-state to access abortion. The bill, titled the Ensuring Access t
Related Attorneys
Related Capabilities
© 2026 Jenner & Block LLP. Attorney Advertising. Jenner & Block LLP is an Illinois Limited Liability Partnership including professional corporations. This publication, presentation, or event is not intended to provide legal advice but to provide information on legal matters and/or firm news of interest to our clients and colleagues. Readers or attendees should seek specific legal advice before taking any action with respect to matters mentioned in this publication or at this event. The attorney responsible for this communication is Brent E. Kidwell, Jenner & Block LLP, 353 N. Clark Street, Chicago, IL 60654-3456. Prior results do not guarantee a similar outcome. Jenner & Block London LLP, an affiliate of Jenner & Block LLP, is a limited liability partnership established under the laws of the State of Delaware, USA and is authorised and regulated by the Solicitors Regulation Authority with SRA number 615729. Information regarding the data we collect and the rights you have over your data can be found in our Privacy Notice. For further inquiries, please contact dataprotection@jenner.com.
Publications
July 27, 2022
By: Dawn L. Smalls, Shoba Pillay, Anne Cortina Perry, Alison I. Stein, Isabel Farhi, Andrew J. Plague, Elizabeth M. Powers, A. Lulu Zhang, Dakota C. Foster and Kevin G. Chisolm
In Part I of this series, released in the days after the Dobbs v. Jackson Women’s Health Organization decision issued, we discussed the impact of the decision on American businesses, the risks of which they should be aware, and offered guidance for how companies could proactively respond to the changing legal landscape. In Part II, we outlined the status of abortion across the states in the immediate aftermath of the decision.
As we cross the one-month mark since the US Supreme Court issued Dobbs, the legal, policy, and political battles that will follow are becoming clearer and the extent to which corporations could face potential legal liability or political retaliation is also coming into sharpened focus. In this alert, we provide updates and analyze the implications of:
- Federal Actions: The Biden Administration Is Acting to Protect Reproductive Rights Under Available Federal Laws, Heightening Potential for Federal Conflicts with State Actions – The President’s recent Executive Order and agency action at the FDA, HHS, and FTC signal postDobbs executive branch priorities and areas of concern: namely, medication abortion, and personal health and location data protection.
- State Actions: States Are Acting Swiftly to Implement and Expand Abortion Laws, and State Prosecutors Are Beginning to Announce Their Intentions to Prosecute – Nearly half of states are in the process of passing or implementing laws to severely restrict or ban access to abortion medication and procedures, and are looking for ways to further discourage women from seeking abortions, including by enhancing penalties and expanding the universe of those whom they will hold responsible for soliciting or aiding an abortion. Conversely, many of the states where abortion remains accessible are taking steps to further increase reproductive health care options and to protect individuals traveling for abortions to the extent possible.
- Intersection of Federal and State Efforts: Out-of-State Travel – As states and the federal government act, the critical issue at the forefront will be interstate travel benefits for employees.
As these battle lines are drawn, questions surrounding how and whether civil and criminal liability will attach to companies providing access to reproductive care will continue to arise and evolve.
I. Actions Being Taken Across the Federal Government to Protect Reproductive Health Access
In the absence of a federal constitutional right to abortion, the federal government is limited in its ability to dictate how states treat abortion. Congress could vote on legislation codifying Roe v. Wade—President Biden has stated that he supports a filibuster carve out for such legislation—but even if such a vote occurs, which is uncertain, it is unlikely to be successful. In the meantime, the federal government, including the White House, federal agencies, and some members of Congress, are
engaging in actions to protect access to abortion.
A. Executive Order Protects Reproductive Health Access
On July 8, 2022, President Biden signed an Executive Order protecting access to reproductive health services. The order directs the Department of Health and Human Services (HHS) to protect access to medication abortion, protect access to contraception, and ensure emergency medical care for pregnant patients. HHS will also consider actions under the Health Insurance Portability and Accountability Act (HIPAA) to protect the data of those seeking an abortion; the agency already has issued HIPAA guidance and a how-to guide for consumers on actions they can take to protect their personal data on apps. The order also tasks the Federal Trade Commission (FTC) with evaluating privacy protections for consumers seeking reproductive services.
B. Agency Action Clarifies Reproductive Health Protections
1. Health and Human Services Says Emergency Abortions Protected and Warns of Risk in Failing to Provide Abortion Medication
Following President Biden’s executive order, HHS released clarifying guidance reaffirming that existing federal law preempts state abortion bans when emergency care is needed. The Emergency Medical Treatment and Active Labor Act (EMTALA), which has been law since 1986, requires that emergency departments provide all patients with stabilizing treatment—treatment which the HHS guidance states could include abortion. Additionally, HHS directed a letter to health care providers, telling providers that EMTALA protects them when they make clinical judgments and provide stabilizing medical treatment to
their pregnant patients—regardless of state restrictions.
In response to this guidance, Texas sued HHS for declaratory relief and to preliminarily and permanently enjoin the guidance in the Northern District of Texas, arguing that the guidance exceeds HHS’s statutory and constitutional authority, along with other challenges under the Administrative Procedure Act.[5] The state did not file for a temporary restraining order, and no additional briefing on the preliminary injunction has been filed as of the date of this alert.
HHS also recently issued guidance to pharmacies, saying that refusing to issue abortion medication could violate provisions of the Affordable Care Act and the Rehabilitation Act of 1973.
2. Federal Drug Administration Allows for Abortion Pills by Mail; States’ Ability to Restrict Pills Unclear
The Federal Drug Administration (FDA) has also taken action to protect abortion access. In December 2021, the agency began allowing patients to receive medication abortion by mail, eliminating a previous requirement that the individual appear in person to receive the medication from their provider. The agency now allows for telemedicine appointments with providers, who then prescribe abortion pills that arrive by mail. However, at least 19 states ban these virtual visits. This conflict sets up another battlefield for abortion access: Can a state regulate abortion pills more restrictively than the FDA? The Department of Justice (DOJ) has previously backed the FDA, saying that states may not ban abortion pills based on disagreements with the agency.
GenBioPro, a company which sells mifepristone, an abortion medication, sued Mississippi in federal court in 2020 over its ban on telemedicine appointments for abortions, claiming that Mississippi’s ban illegally preempted the authority of the FDA.[6] On June 30, after Dobbs, GenBioPro explained in supplemental briefing that its lawsuit is based on the Supremacy and Commerce Clauses of the Constitution, not the Fourteenth Amendment (the argument foreclosed by Dobbs).[7] The judge has not yet issued a ruling in the Mississippi case. This is likely only the first of multiple cases that reckon with the intersection between state law and agency regulation of abortion.
3. Federal Trade Commission Commits to Protecting Health Privacy
Following Biden’s executive order, the FTC released a blog post committing to protecting consumer privacy data, with an emphasis on health data and location data. The FTC said it will “vigorously enforce the law” if the agency finds illegal conduct exploiting American consumers’ location, health, or other sensitive data. It also said that past FTC enforcement actions—such as the action against Flo Health, in which the FTC settled a case to protect data privacy on a period tracking app—would “provide a roadmap” for companies looking to comply with the law, implying that it plans to proceed forward with such enforcement under its normal guidance and procedures.
C. Congressional Efforts to Protect Reproductive Health Access
Democrats in Congress have also been taking steps to protect abortion access, including the Senate Judiciary Committee convening a hearing on July 12, 2022, focused on the legal implications of Dobbs. Democratic witnesses testified about the dangers of outlawing abortion care in the country and the disproportionate impact it will have on marginalized communities—specifically women of color and women with lower income—and voiced concerns about the maternal mortality rate post-Dobbs and the need for stronger data protections to safeguard abortion providers and patients. Conversely, certain Republican Members and witnesses celebrated the Dobbs decision as a victory for the “pro-life” movement and raised concerns about increased violence and intimidation against pro-life activists, pregnancy crisis centers, and pro-life public figures.
On July 14, 2022, the House Committee on Oversight and Reform also convened a hearing regarding the impact of Dobbs, similarly discussing the harm caused by criminalizing abortion, its disproportionate impact on vulnerable communities, and possible impact on reproductive healthcare generally.
Congress is also considering legislation on the abortion-rights issue, though no introduced bills are expected to succeed right now, including pro-choice legislation codifying a federal right to abortion and pro-life legislation banning abortion nationwide. Protecting abortion-seekers’ right to travel and data privacy has become a legislative focus for Democrats: for example, the My Body, My Data Act of 2022 would protect personal data on sexual and reproductive health data collected by apps, cellphones, and search engines. Among its provisions is a requirement that entities obtain individual consent to data’s collection and use. The bill also provides for a right of deletion, requiring companies to remove personal reproductive health or sexual health information, including information obtained from third parties, upon request by an individual. Democratic lawmakers have also sent letters to different private companies, including data brokers, pressuring them to increase their data privacy protections.
The Biden administration, relevant agencies, and Congressional supporters of reproductive rights have taken steps toward protecting abortion access (in particular with respect to medication abortion and emergency reproductive healthcare) and to protecting individuals’ private health information with specific emphasis on health and location data, including the potential for a “right to deletion” with respect to his information. Although the affirmative activity around reproductive rights at the federal level has been in support of reproductive rights, the action at the state level is decidedly more mixed.
II. Update on State Actions
In our Part II alert titled “Outlining the Threat to Reproductive Rights Across the United States,” we highlighted the then-current state of abortion bans in states that had abortion bans in effect or that were expected to be in effect and enforced soon. In the weeks since then, lawmakers on both sides of the political divide have acted, either to further limit abortion access or to shore up protections for that access. Lawmakers in states with effective abortion bans are setting the stage for abortion prosecutions by calling for vigorous enforcement of the state’s bans or by increasing restrictions to make prosecutions easier.
A. Legislation Banning or Strengthening Existing Bans
While abortion is still expected to be banned or severely restricted in about half of all states, in the month since Dobbs there have been shifts in the number of states with abortion bans currently in effect, abortion bans that have been stayed in courts, and abortion bans that have not yet gone into effect:
- Abortion Bans or Effective Bans Currently or Soon to Be in Effect in Fifteen States:
- “Trigger laws” (abortion bans set into motion by the overturning of Roe) have gone into effect to ban abortion in Alabama, Arkansas, Mississippi, Missouri, Oklahoma, South Dakota, and Wyoming (North Dakota will be in effect on July 28, 2022.)
- “Zombie” laws are being used to ban abortion while awaiting trigger laws or further state action (including through litigation) in Texas and Wisconsin.
- Effective abortion bans, which ban abortion beginning so early in pregnancy that they act as a ban, are in effect in Florida (15-week), Georgia (6-week), Ohio (6-week), South Carolina (6-week), Tennessee (6-week), and Texas (6-week).
- Abortion Bans Have Been Temporarily Blocked by Courts in Five States: Arizona, Kentucky,
Louisiana, Utah, and West Virginia. - Abortion Bans in Place But Not Yet Effective in Three States: Trigger laws in Idaho, Tennessee, and Texas have not yet taken effect due to procedural delays related to the Supreme Court’s official judgment. These laws are expected to take effect on August 25, 2022.
- States Expected to Enact Abortion Bans: Several other states that did not have total or near-total bans due to Roe—including Iowa, Indiana, and Kansas—are expected to pass such bans soon via legislation or voter referendum.[11] South Carolina, which already has a six-week ban, is also looking to institute a total ban.
Immediately upon the issuance of Dobbs, the Texas Attorney General issued an advisory noting that criminal prosecutors could “immediately” enforce Texas abortion laws. A number of state attorneys general have explicitly called for criminal investigations and enforcement action against people who violate state abortion bans. Missouri Attorney General Eric Schmitt has vowed to prosecute any municipal body that uses public funds to support abortions—and has indeed filed suit against St. Louis —while Oklahoma Attorney General John O'Connor stated that he would immediately pursue action against anyone who “solicit[s]” an abortion, including companies funding out of state abortion travel. In Arizona, Attorney General Mark Brnovich has requested from a court the prosecutorial power for himself and local prosecutors against doctors who provide abortions.
States prohibiting abortion are also intensifying their existing positions, pursuing measures that would make the penalties for assisting with an abortion stronger and would expand the group of individuals and entities who could be held responsible under those statutes. For example, on July 7, 2022, members of the Texas Freedom Caucus released a letter both accusing law firm Sidley Austin LLP, a Chicago law firm with operations in Texas, of assisting abortions in contravention of Texas state law and laying out proposed legislation to make Texas’ bans more punitive. The proposed legislation would prohibit employers in Texas from paying for abortions or reimbursing abortion-related expenses regardless of where the abortion occurs, create a private right of action against anyone who pays for, or pays the costs associated with an abortion performed on a Texas resident, require Texas to disbar a lawyer who violates an abortion statute including by aiding and abetting an abortion, empower district attorneys from throughout the state to prosecute abortion-related crimes when the local district attorney does not, and eliminate the three-year statute of limitations on abortion-related crimes. Similarly, in Idaho, lawmakers are discussing legislation to eliminate exceptions for rape and incest and
to target IUDs. However, both the Texas and Idaho state legislatures have concluded their 2022 legislative calendars and will not return until January 2023. These proposals are a roadmap for what we can expect in 2023 legislative sessions, not immediate threats.
B. Laws Safeguarding or Strengthening Abortion Access
On the other side of the aisle, some states are moving to further safeguard abortion access.
Lawmakers and abortion advocates in California, New York, Michigan, and Vermont, for example, are working to more explicitly enshrine protection for abortion rights in their state constitutions. Blue states are also increasing abortion access by expanding providers and funding. New laws in Delaware[12] and Connecticut[13] expand the type of providers who are permitted to perform abortion care, authorizing certified nurse practitioners and certain physician assistants to perform abortions, while Oregon has appropriated $15 million to serve abortion seekers and providers. Laws shoring up abortion access are not, however, immune from constitutional scrutiny. To the extent that such laws seek to shield one state’s citizens from another state’s laws, they could violate the Constitution’s Full Faith and Credit clause.
III. Key Issue at the Intersection of Federal and State Level Efforts: Interstate Travel
The importance of interstate travel in connection with the potential provision of abortion care creates complicated legal issues juxtaposing the interests of states with differing abortion laws, under an overlay of potential federal Constitutional or legislative control.
A. Some States Seek to Prosecute Across State Lines; Other States Refuse to Extradite
Many states, including Arkansas and South Dakota, are reportedly considering draft legislation,
assisted by organizations such as the Thomas More Society and the National Association of Christian Lawmakers, that would permit private citizens to sue any individual who helps a pregnant person cross state lines for an abortion. According to The Washington Post, the legislation’s legal enforcement mechanism—allowing private citizens to sue via civil litigation—is similar to that of Texas Senate Bill 8, Texas’ “Fetal Heartbeat Law” that was passed in 2021 and empowered private citizens to be “bounty hunters” to enforce the law. Lawmakers in Missouri introduced such a law earlier this year.[14]
At least six states have enacted measures to prevent extradition for abortion care. In several, this took the form of legislation. For instance, both Delaware and Connecticut have enacted laws prohibiting or limiting the extradition of individuals in connection with abortion care; the Massachusetts House approved a similar bill. Similarly, California recently enacted a law protecting those in California from civil liability for providing, aiding, or receiving abortion care in-state.
Four states’ governors signed executive orders refusing extradition for abortion-seekers and providers and prohibiting state agencies from participating in other states’ investigations into abortion-seekers and providers, or both: Massachusetts, North Carolina,[15] Michigan, and Colorado (action by both the Governor and the Secretary of State). While these state actions prevent extradition, there may not be protection from state punishment once the abortion seeker or provider returns or travels to the prosecuting state.
As we previously noted, the constitutional issues regarding the ability of states to legislate outside their borders may be effected by an upcoming decision by the Supreme Court in National Pork Producers Council v. Ross. However, even if the Court relaxes rules around extraterritoriality, with other states taking steps to prohibit extradition, it is unclear which state’s law would apply.
B. Congressional Efforts to Protect Interstate Travel
Congressional efforts to guarantee the federal right to interstate travel have faced limited success. On July 15, 2022, the United States House of Representatives passed a bill to protect people who travel out-of-state to access abortion. The bill, titled the Ensuring Access t
As we cross the one-month mark since the US Supreme Court issued Dobbs, the legal, policy, and political battles that will follow are becoming clearer and the extent to which corporations could face potential legal liability or political retaliation is also coming into sharpened focus. In this alert, we provide updates and analyze the implications of:
- Federal Actions: The Biden Administration Is Acting to Protect Reproductive Rights Under Available Federal Laws, Heightening Potential for Federal Conflicts with State Actions – The President’s recent Executive Order and agency action at the FDA, HHS, and FTC signal postDobbs executive branch priorities and areas of concern: namely, medication abortion, and personal health and location data protection.
- State Actions: States Are Acting Swiftly to Implement and Expand Abortion Laws, and State Prosecutors Are Beginning to Announce Their Intentions to Prosecute – Nearly half of states are in the process of passing or implementing laws to severely restrict or ban access to abortion medication and procedures, and are looking for ways to further discourage women from seeking abortions, including by enhancing penalties and expanding the universe of those whom they will hold responsible for soliciting or aiding an abortion. Conversely, many of the states where abortion remains accessible are taking steps to further increase reproductive health care options and to protect individuals traveling for abortions to the extent possible.
- Intersection of Federal and State Efforts: Out-of-State Travel – As states and the federal government act, the critical issue at the forefront will be interstate travel benefits for employees.
As these battle lines are drawn, questions surrounding how and whether civil and criminal liability will attach to companies providing access to reproductive care will continue to arise and evolve.
I. Actions Being Taken Across the Federal Government to Protect Reproductive Health Access
In the absence of a federal constitutional right to abortion, the federal government is limited in its ability to dictate how states treat abortion. Congress could vote on legislation codifying Roe v. Wade—President Biden has stated that he supports a filibuster carve out for such legislation—but even if such a vote occurs, which is uncertain, it is unlikely to be successful. In the meantime, the federal government, including the White House, federal agencies, and some members of Congress, are
engaging in actions to protect access to abortion.
A. Executive Order Protects Reproductive Health Access
On July 8, 2022, President Biden signed an Executive Order protecting access to reproductive health services. The order directs the Department of Health and Human Services (HHS) to protect access to medication abortion, protect access to contraception, and ensure emergency medical care for pregnant patients. HHS will also consider actions under the Health Insurance Portability and Accountability Act (HIPAA) to protect the data of those seeking an abortion; the agency already has issued HIPAA guidance and a how-to guide for consumers on actions they can take to protect their personal data on apps. The order also tasks the Federal Trade Commission (FTC) with evaluating privacy protections for consumers seeking reproductive services.
B. Agency Action Clarifies Reproductive Health Protections
1. Health and Human Services Says Emergency Abortions Protected and Warns of Risk in Failing to Provide Abortion Medication
Following President Biden’s executive order, HHS released clarifying guidance reaffirming that existing federal law preempts state abortion bans when emergency care is needed. The Emergency Medical Treatment and Active Labor Act (EMTALA), which has been law since 1986, requires that emergency departments provide all patients with stabilizing treatment—treatment which the HHS guidance states could include abortion. Additionally, HHS directed a letter to health care providers, telling providers that EMTALA protects them when they make clinical judgments and provide stabilizing medical treatment to
their pregnant patients—regardless of state restrictions.
In response to this guidance, Texas sued HHS for declaratory relief and to preliminarily and permanently enjoin the guidance in the Northern District of Texas, arguing that the guidance exceeds HHS’s statutory and constitutional authority, along with other challenges under the Administrative Procedure Act.[5] The state did not file for a temporary restraining order, and no additional briefing on the preliminary injunction has been filed as of the date of this alert.
HHS also recently issued guidance to pharmacies, saying that refusing to issue abortion medication could violate provisions of the Affordable Care Act and the Rehabilitation Act of 1973.
2. Federal Drug Administration Allows for Abortion Pills by Mail; States’ Ability to Restrict Pills Unclear
The Federal Drug Administration (FDA) has also taken action to protect abortion access. In December 2021, the agency began allowing patients to receive medication abortion by mail, eliminating a previous requirement that the individual appear in person to receive the medication from their provider. The agency now allows for telemedicine appointments with providers, who then prescribe abortion pills that arrive by mail. However, at least 19 states ban these virtual visits. This conflict sets up another battlefield for abortion access: Can a state regulate abortion pills more restrictively than the FDA? The Department of Justice (DOJ) has previously backed the FDA, saying that states may not ban abortion pills based on disagreements with the agency.
GenBioPro, a company which sells mifepristone, an abortion medication, sued Mississippi in federal court in 2020 over its ban on telemedicine appointments for abortions, claiming that Mississippi’s ban illegally preempted the authority of the FDA.[6] On June 30, after Dobbs, GenBioPro explained in supplemental briefing that its lawsuit is based on the Supremacy and Commerce Clauses of the Constitution, not the Fourteenth Amendment (the argument foreclosed by Dobbs).[7] The judge has not yet issued a ruling in the Mississippi case. This is likely only the first of multiple cases that reckon with the intersection between state law and agency regulation of abortion.
3. Federal Trade Commission Commits to Protecting Health Privacy
Following Biden’s executive order, the FTC released a blog post committing to protecting consumer privacy data, with an emphasis on health data and location data. The FTC said it will “vigorously enforce the law” if the agency finds illegal conduct exploiting American consumers’ location, health, or other sensitive data. It also said that past FTC enforcement actions—such as the action against Flo Health, in which the FTC settled a case to protect data privacy on a period tracking app—would “provide a roadmap” for companies looking to comply with the law, implying that it plans to proceed forward with such enforcement under its normal guidance and procedures.
C. Congressional Efforts to Protect Reproductive Health Access
Democrats in Congress have also been taking steps to protect abortion access, including the Senate Judiciary Committee convening a hearing on July 12, 2022, focused on the legal implications of Dobbs. Democratic witnesses testified about the dangers of outlawing abortion care in the country and the disproportionate impact it will have on marginalized communities—specifically women of color and women with lower income—and voiced concerns about the maternal mortality rate post-Dobbs and the need for stronger data protections to safeguard abortion providers and patients. Conversely, certain Republican Members and witnesses celebrated the Dobbs decision as a victory for the “pro-life” movement and raised concerns about increased violence and intimidation against pro-life activists, pregnancy crisis centers, and pro-life public figures.
On July 14, 2022, the House Committee on Oversight and Reform also convened a hearing regarding the impact of Dobbs, similarly discussing the harm caused by criminalizing abortion, its disproportionate impact on vulnerable communities, and possible impact on reproductive healthcare generally.
Congress is also considering legislation on the abortion-rights issue, though no introduced bills are expected to succeed right now, including pro-choice legislation codifying a federal right to abortion and pro-life legislation banning abortion nationwide. Protecting abortion-seekers’ right to travel and data privacy has become a legislative focus for Democrats: for example, the My Body, My Data Act of 2022 would protect personal data on sexual and reproductive health data collected by apps, cellphones, and search engines. Among its provisions is a requirement that entities obtain individual consent to data’s collection and use. The bill also provides for a right of deletion, requiring companies to remove personal reproductive health or sexual health information, including information obtained from third parties, upon request by an individual. Democratic lawmakers have also sent letters to different private companies, including data brokers, pressuring them to increase their data privacy protections.
The Biden administration, relevant agencies, and Congressional supporters of reproductive rights have taken steps toward protecting abortion access (in particular with respect to medication abortion and emergency reproductive healthcare) and to protecting individuals’ private health information with specific emphasis on health and location data, including the potential for a “right to deletion” with respect to his information. Although the affirmative activity around reproductive rights at the federal level has been in support of reproductive rights, the action at the state level is decidedly more mixed.
II. Update on State Actions
In our Part II alert titled “Outlining the Threat to Reproductive Rights Across the United States,” we highlighted the then-current state of abortion bans in states that had abortion bans in effect or that were expected to be in effect and enforced soon. In the weeks since then, lawmakers on both sides of the political divide have acted, either to further limit abortion access or to shore up protections for that access. Lawmakers in states with effective abortion bans are setting the stage for abortion prosecutions by calling for vigorous enforcement of the state’s bans or by increasing restrictions to make prosecutions easier.
A. Legislation Banning or Strengthening Existing Bans
While abortion is still expected to be banned or severely restricted in about half of all states, in the month since Dobbs there have been shifts in the number of states with abortion bans currently in effect, abortion bans that have been stayed in courts, and abortion bans that have not yet gone into effect:
- Abortion Bans or Effective Bans Currently or Soon to Be in Effect in Fifteen States:
- “Trigger laws” (abortion bans set into motion by the overturning of Roe) have gone into effect to ban abortion in Alabama, Arkansas, Mississippi, Missouri, Oklahoma, South Dakota, and Wyoming (North Dakota will be in effect on July 28, 2022.)
- “Zombie” laws are being used to ban abortion while awaiting trigger laws or further state action (including through litigation) in Texas and Wisconsin.
- Effective abortion bans, which ban abortion beginning so early in pregnancy that they act as a ban, are in effect in Florida (15-week), Georgia (6-week), Ohio (6-week), South Carolina (6-week), Tennessee (6-week), and Texas (6-week).
- Abortion Bans Have Been Temporarily Blocked by Courts in Five States: Arizona, Kentucky,
Louisiana, Utah, and West Virginia. - Abortion Bans in Place But Not Yet Effective in Three States: Trigger laws in Idaho, Tennessee, and Texas have not yet taken effect due to procedural delays related to the Supreme Court’s official judgment. These laws are expected to take effect on August 25, 2022.
- States Expected to Enact Abortion Bans: Several other states that did not have total or near-total bans due to Roe—including Iowa, Indiana, and Kansas—are expected to pass such bans soon via legislation or voter referendum.[11] South Carolina, which already has a six-week ban, is also looking to institute a total ban.
Immediately upon the issuance of Dobbs, the Texas Attorney General issued an advisory noting that criminal prosecutors could “immediately” enforce Texas abortion laws. A number of state attorneys general have explicitly called for criminal investigations and enforcement action against people who violate state abortion bans. Missouri Attorney General Eric Schmitt has vowed to prosecute any municipal body that uses public funds to support abortions—and has indeed filed suit against St. Louis —while Oklahoma Attorney General John O'Connor stated that he would immediately pursue action against anyone who “solicit[s]” an abortion, including companies funding out of state abortion travel. In Arizona, Attorney General Mark Brnovich has requested from a court the prosecutorial power for himself and local prosecutors against doctors who provide abortions.
States prohibiting abortion are also intensifying their existing positions, pursuing measures that would make the penalties for assisting with an abortion stronger and would expand the group of individuals and entities who could be held responsible under those statutes. For example, on July 7, 2022, members of the Texas Freedom Caucus released a letter both accusing law firm Sidley Austin LLP, a Chicago law firm with operations in Texas, of assisting abortions in contravention of Texas state law and laying out proposed legislation to make Texas’ bans more punitive. The proposed legislation would prohibit employers in Texas from paying for abortions or reimbursing abortion-related expenses regardless of where the abortion occurs, create a private right of action against anyone who pays for, or pays the costs associated with an abortion performed on a Texas resident, require Texas to disbar a lawyer who violates an abortion statute including by aiding and abetting an abortion, empower district attorneys from throughout the state to prosecute abortion-related crimes when the local district attorney does not, and eliminate the three-year statute of limitations on abortion-related crimes. Similarly, in Idaho, lawmakers are discussing legislation to eliminate exceptions for rape and incest and
to target IUDs. However, both the Texas and Idaho state legislatures have concluded their 2022 legislative calendars and will not return until January 2023. These proposals are a roadmap for what we can expect in 2023 legislative sessions, not immediate threats.
B. Laws Safeguarding or Strengthening Abortion Access
On the other side of the aisle, some states are moving to further safeguard abortion access.
Lawmakers and abortion advocates in California, New York, Michigan, and Vermont, for example, are working to more explicitly enshrine protection for abortion rights in their state constitutions. Blue states are also increasing abortion access by expanding providers and funding. New laws in Delaware[12] and Connecticut[13] expand the type of providers who are permitted to perform abortion care, authorizing certified nurse practitioners and certain physician assistants to perform abortions, while Oregon has appropriated $15 million to serve abortion seekers and providers. Laws shoring up abortion access are not, however, immune from constitutional scrutiny. To the extent that such laws seek to shield one state’s citizens from another state’s laws, they could violate the Constitution’s Full Faith and Credit clause.
III. Key Issue at the Intersection of Federal and State Level Efforts: Interstate Travel
The importance of interstate travel in connection with the potential provision of abortion care creates complicated legal issues juxtaposing the interests of states with differing abortion laws, under an overlay of potential federal Constitutional or legislative control.
A. Some States Seek to Prosecute Across State Lines; Other States Refuse to Extradite
Many states, including Arkansas and South Dakota, are reportedly considering draft legislation,
assisted by organizations such as the Thomas More Society and the National Association of Christian Lawmakers, that would permit private citizens to sue any individual who helps a pregnant person cross state lines for an abortion. According to The Washington Post, the legislation’s legal enforcement mechanism—allowing private citizens to sue via civil litigation—is similar to that of Texas Senate Bill 8, Texas’ “Fetal Heartbeat Law” that was passed in 2021 and empowered private citizens to be “bounty hunters” to enforce the law. Lawmakers in Missouri introduced such a law earlier this year.[14]
At least six states have enacted measures to prevent extradition for abortion care. In several, this took the form of legislation. For instance, both Delaware and Connecticut have enacted laws prohibiting or limiting the extradition of individuals in connection with abortion care; the Massachusetts House approved a similar bill. Similarly, California recently enacted a law protecting those in California from civil liability for providing, aiding, or receiving abortion care in-state.
Four states’ governors signed executive orders refusing extradition for abortion-seekers and providers and prohibiting state agencies from participating in other states’ investigations into abortion-seekers and providers, or both: Massachusetts, North Carolina,[15] Michigan, and Colorado (action by both the Governor and the Secretary of State). While these state actions prevent extradition, there may not be protection from state punishment once the abortion seeker or provider returns or travels to the prosecuting state.
As we previously noted, the constitutional issues regarding the ability of states to legislate outside their borders may be effected by an upcoming decision by the Supreme Court in National Pork Producers Council v. Ross. However, even if the Court relaxes rules around extraterritoriality, with other states taking steps to prohibit extradition, it is unclear which state’s law would apply.
B. Congressional Efforts to Protect Interstate Travel
Congressional efforts to guarantee the federal right to interstate travel have faced limited success. On July 15, 2022, the United States House of Representatives passed a bill to protect people who travel out-of-state to access abortion. The bill, titled the Ensuring Access t
Related Attorneys
Related Capabilities
© 2026 Jenner & Block LLP. Attorney Advertising. Jenner & Block LLP is an Illinois Limited Liability Partnership including professional corporations. This publication, presentation, or event is not intended to provide legal advice but to provide information on legal matters and/or firm news of interest to our clients and colleagues. Readers or attendees should seek specific legal advice before taking any action with respect to matters mentioned in this publication or at this event. The attorney responsible for this communication is Brent E. Kidwell, Jenner & Block LLP, 353 N. Clark Street, Chicago, IL 60654-3456. Prior results do not guarantee a similar outcome. Jenner & Block London LLP, an affiliate of Jenner & Block LLP, is a limited liability partnership established under the laws of the State of Delaware, USA and is authorised and regulated by the Solicitors Regulation Authority with SRA number 615729. Information regarding the data we collect and the rights you have over your data can be found in our Privacy Notice. For further inquiries, please contact dataprotection@jenner.com.
News and Insights
Podcasts
Partner Laurel Loomis Rimon Discusses Fintech Enforcement, Debanking, and Regulatory Risk on Fintech Layer Cake Podcast
Partner Laurel Loomis Rimon was featured on the Fintech Layer Cake podcast, where she discussed how fintech enforcement and prosecution actually work in practice, and what exposes fintechs and banks to regulatory risk.
July 15, 2026
Publications
Supreme Court Clarifies Scope of Private Rights of Action Under the Investment Company Act, Private Equity Law Report
Partners Charles Riely, Todd C. Toral, and Martin Glass authored a guest article for Private Equity Law Report examining the US Supreme Court's June 11, 2026, ruling on the scope of private rights of action under the Investment Company Act of 1940.
July 14, 2026
Publications
Emily Loeb Discusses Congressional Oversight Preparedness in Bloomberg Law
Partner Emily Loeb, co-chair of Jenner & Block's Congressional Investigations Practice, spoke with Bloomberg Law article about how companies can prepare for potential oversight exposure ahead of this fall's midterm elections.
July 7, 2026
Publications
In New York Law Journal, The True Lender Doctrine and the OppFi Decision
Partners Jeremy Creelan, Michael Ross, Megan Poetzel, and Laurel Loomis Rimon, and Associate Molly Oberstein-Allen authored an article for the New York Law Journal examining the "True Lender" doctrine in light of a May 2026 California decision that provides the most detailed judicial framework to date for evaluating bank-nonbank lending partnerships.
July 1, 2026
Event
Partner Michael Vernick to Speak at NACUA's 2026 Annual Conference
On July 1, Partner Michael Vernick will speak on a panel at the National Association of College and University Attorneys (NACUA) 2026 Annual Conference in Nashville.
July 1, 2026