The U.S. Supreme Court’s ruling in Dobbs v. Jackson Women’s Health Organization and its progeny have sparked confusion and uncertainty for individuals, medical providers, and employers with respect to the consequences of providing, seeking, or facilitating abortion care. Moreover, for both medical providers and employers, questions arose as to whether and how liability insurance might help alleviate these risks.
Now that a year has passed since the Dobbs decision, it is worth revisiting the liability landscape, as well as the question of how insurance coverage might play a role in providing relief with respect to the ongoing risk of litigation.
The Dobbs decision, which held that access to abortion care is no longer a constitutionally protected right, raised a host of questions as to whether medical providers and employers might face civil or criminal liability for facilitating access to abortions, particularly in states that responded by enacting a panoply of restrictions in response to Dobbs. This uncertainty was heightened by inevitable litigation concerning the viability of the new statutes and has led to widespread confusion in many states. This confusion has been exacerbated by the Centers for Medicare & Medicaid Services (“CMS”), which initiated investigations into hospitals in Missouri and Kansas, asserting that they were in violation of the law by failing to offer necessary, life-saving abortion services.
As a result, Dobbs and its progeny generated questions for companies operating in multiple states with both permissive and restrictive abortion laws. When companies began to announce benefits for employees seeking abortions outside of restrictive states (to put them on the same footing as employees in permissive states), some employers faced threats of litigation from anti-abortion groups. For example, in July 2022, a group of conservative state legislators sent a letter to Sidley Austin, warning the firm that its policy of providing benefits to support abortion access could result in criminal liability, and referenced proposed legislation that would prohibit Texas employers from reimbursing abortion-related costs.
In the wake of such developments, and due to piecemeal legislation across the country addressing abortion access issues, questions persist as to how medical professional liability, commercial general liability, and D&O liability insurance might respond to liabilities related thereto.
A look back on the year following Dobbs
Medical service providers:
One year later, these questions remain and, in many cases, have grown in complexity, with little clarity on how the issue would be resolved. For medical service providers, the issue of civil and criminal liability remains of utmost importance. Every state, no matter how restrictive its ban, permits abortion to save the life of the mother, with varying wording and with varying timing restrictions. Furthermore, due to so-called “heartbeat” laws, much miscarriage treatment has been and will continue to be construed as abortion services. These carve-outs have been, and will continue to be, a significant liability risk.
As referenced above, medical service providers not only face liability exposure for providing abortion services – they may also face exposure to federal penalties for not doing so under the Emergency Medical Treatment and Labor Act (EMTALA). As Health and Human Services Secretary Xavier Becerra noted in a letter to hospitals and provider associations across the country, federal law requires hospitals to provide necessary emergency treatment, including abortion care, and those laws will continue to be enforced even as state laws restrict abortion access. Medical service providers therefore face a double bind in complying with potentially conflicting abortion laws.
The question of how lawsuits against medical service providers will ultimately play out in court continues to be tested. For example, state “bounty hunter” abortion laws, which allow private citizens to file lawsuits against any individual who “aids or abets” an abortion, may face pushback in court as seen with the recent dismissal of the first case challenging Texas’ “bounty hunter” law.
On the employment side, as of early 2023, companies providing abortion access to their employees have not yet faced lawsuits in any state. The factors driving this lack of litigation are unclear. One potential factor may be a shift in party priorities now that Dobbs has resulted in restrictive abortion laws across several states. For example, as some commentators have noted, while conservative Texas lawmakers previously foreshadowed further restrictive legislation, party leaders have focused on other issues, such as education and property taxes, in the most recent session of the Texas legislature. Additionally, the legality and longevity of states’ prohibitions on abortion access continue to be tested in court, as many such bans are facing challenges by individual plaintiffs, abortion rights groups, and the federal government.
Although employers have yet to face lawsuits arising out of abortion, this remains a risk, and employers need to continue to monitor legal developments. The issue of abortion access continues to be hotly-litigated, as made evident by the lawsuits noted above and the recent proceedings in the Supreme Court and the Fifth Circuit regarding access to mifepristone. Furthermore, Dobbs resulted in blanket abortion bans in 14 states. The details of these bans, including exceptions for circumstances such as the impairment to a major bodily function of the pregnant person, vary from state-to-state. The piecemeal nature of the legislation enabled by Dobbs only complicates the issue of how employers might become exposed to lawsuits.
Medical service providers:
As their exposure to liability continues to evolve, medical providers ought to review their professional liability and commercial general liability coverages and the corresponding exclusions. While professional liability coverage will typically cover businesses and professionals against liability relating to alleged errors or omissions occurring in the course of their services, such policies often include exclusions for deliberate criminal acts. Commercial general liability policies, which typically cover costs incurred in litigation over alleged wrongful acts committed by a company or its employees, often include such exclusions as well. The interpretation of such coverage provisions and exclusions will likely depend, at least in part, on the status of abortion restrictions and the potential interplay between jurisdictions’ laws at the time of such litigation.
Moreover, given that professional liability insurance typically contains exclusions for illegal or criminal acts, questions remain as to whether carriers will attempt to pull back coverage or report providers who offer abortion access. In the wake of Dobbs, legislation was enacted in New York to prohibit medical malpractice carriers from penalizing policyholders for providing abortion care within the state, such as by refusing to renew their policies, changing coverage terms, or reporting their insureds for abortion care. Therefore, it continues to be important for medical providers to not only assess the nature of their liability coverage, but also assess developments in legal restrictions and governmental regulation of malpractice carriers.
Given the ever-changing landscape of abortion restrictions resulting from Dobbs, it is more important than ever for employers to carefully review and understand their liability coverages as well. As with professional and CGL policies, D&O policies also typically contain exclusions for criminal acts. Employers would be wise to review their various sources of coverage and to continue to monitor the litigation and legislative developments arising out of Dobbs as they continue to provide abortion-related benefits. Further, as state restrictions regarding abortion access tighten or diminish, employers that operate in multiple states must consider and keep apprised of how their policies and procedures will need to vary across jurisdictions, and how abortion access might create unique liabilities from one state to the next. Lastly, to the extent employers suspect that their exposure to liability is significant, it is crucial that they immediately consult counsel to prevent their insurers from misusing provisions such as the aforementioned exclusion for criminal acts.
While there has been some good news for medical providers and employers providing access to abortion in the year following Dobbs and its progeny, the landscape of potential liability has proven to be ever-changing and fraught with confusion. These developments only complicate the issue of how coverage provisions and exclusions in relevant insurance policies will be interpreted, and how that differs depending on geographic location, should providers or employers find themselves in litigation or at odds with their carriers. Continued vigilance is necessary as providers and employers continue to grapple with an uncertain – and unprecedented – legal landscape.