July 27, 2022

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 post-Dobbs 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.

To read the full alert, click here