FEATURED STORY June 24, 2022

The Overturning of Roe v. Wade

You've Reached Your
Free Article Limit This Month
Subscribe now to get unlimited access to all OnPractice content. Your subscription is free.
Subscribe Now

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.

ALM expressly disclaims any express or implied warranty regarding the OnPractice Content, including any implied warranty that the OnPractice Content is accurate, has been corrected or is otherwise free from errors.

More From McDermott Will & Emery

Purposeful Direction in a Forum Activates the Long Arm of the Law

By Jiaxiao Zhang McDermott Will & Emery July 28 , 2022

The US Court of Appeals for the Ninth Circuit again vacated the US District Court for the Central District of California’s dismissal of a case for lack of personal jurisdiction, applying Fed. R. Civ. Proc. 4(k)(2) and concluding that the copyright infringement claims involving a foreign defendant were properly litigated in the United States.

Standard Techniques Applied in Standard Way to Observe Natural Phenomena? Not Patent Eligible

By Jiaxiao Zhang McDermott Will & Emery July 28 , 2022

In what may be another blow to diagnostic patents, the US Court of Appeals for the Federal Circuit affirmed the patent ineligibility of claims that it held to be directed to detecting natural phenomena by conventional techniques.

Court to Counsel: Be Frivolous at Your Own Risk

By Cecilia Choy, Ph.D. McDermott Will & Emery July 28 , 2022

The US Court of Appeals for the Federal Circuit may “award just damages and single or double costs to the appellee” under the Federal Rule of Appellate Procedure 38 if an appeal is frivolous as filed or as argued.

More From Health Care Law

Massachusetts Enacts CROWN Act, Prohibiting Discrimination Against Protective Hairstyles

By Samia M. Kirmani Jackson Lewis P.C. August 04 , 2022

Employers should review their policies, handbooks, and training materials to ensure compliance with the new law.

Bristol-Myers Decision Applies to Plaintiffs in FLSA Collective Actions, Third Circuit Holds

By David R. Golder Jackson Lewis P.C. August 02 , 2022

Joining two other circuits, the U.S. Court of Appeals for the Third Circuit has held that Bristol-Myers does apply to FLSA collective actions, and therefore, federal courts may not exercise jurisdiction over claims of out-of-state opt-in plaintiffs in putative collective actions, other than in the states in which the employer has its principal place of business or is incorporated.

Discrimination Based on Sexual Orientation Unlawful, Michigan High Court Holds, Overruling Precedent

By Marlo Johnson Roebuck Jackson Lewis P.C. August 01 , 2022

This opinion, with two justices dissenting, comes approximately two years after the U.S. Supreme Court ruling in Bostock v. Clayton County, 140 S. Ct. 1731 (2020), which held that Title VII of the Civil Rights Act of 1964 prohibits discrimination in employment based on sexual orientation and gender identity.

Featured Stories