This year would have marked the 50th anniversary of the U.S. Supreme Court’s ruling on Roe v. Wade, a decision that provided the constitutional right to deliver and receive abortion, reproductive, and pregnancy care. Instead, 2023 signifies the one-year anniversary of Dobbs v. Jackson Women’s Health Organization, the consequential case in which the U.S. Supreme Court overturned Roe v. Wade, eliminating the federal protection of abortion care rights.
Following the Dobbs ruling, some states swiftly moved to implement their own laws restricting abortion access. Current state laws range from complete or partial abortion procedure bans to the criminalization of abortion care.
At the time of this writing, full abortion bans have been implemented in 14 states, and partial bans have been implemented in an additional 6 states. These bans have far-reaching implications for healthcare providers forced to navigate guidelines that can be legally ambiguous and challenge established standards of care for a wide range of pregnancy-related medical conditions.¹
On the other hand, California was one of the first states in the nation post-Dobbs to declare that “the state shall not deny or interfere with an individual's reproductive freedom in their most intimate decisions, which includes their fundamental right to choose to have an abortion and their fundamental right to choose or refuse contraceptives.” Nearly 67% of voters favored Proposition 1, State Constitutional Right to Reproductive Freedom, during the 2022 midterm elections.²
Since the passage of the ballot measure, California has moved quickly to enact legislation protecting access to abortion and transgender care, and the healthcare providers involved in delivering these services.
In early 2023, a comprehensive bill package was introduced by the California Legislative Women’s Caucus³ to expand access to care, to strengthen protections shielding physicians from criminal liability in other states, and to ensure online data privacy.
Organized coalitions statewide are bringing together legal professionals willing to provide pro bono representation. One such group has been formed out of the UCLA School of Law and is called the Southern California Legal Alliance for Reproductive Justice (SoCal LARJ).4 Their coalition includes more than 45 local and national firms to undertake the work on a full range of legal matters pertaining to reproductive rights and the protection of women’s healthcare rights.
As the fight to defend reproductive rights remains a major legislative priority nationwide for many, fallout from the Dobbs decision will increasingly continue to present challenges for the healthcare sector.
A preliminary study by University of California San Francisco (UCSF) is closely examining how healthcare has been affected by the abortion bans. Patients “are being harmed in significant ways because care is being denied or delayed,” said Daniel Grossman, a professor at UCSF and principal investigator of the study. “These laws are having a broader impact beyond people who are seeking abortion because they have an undesired pregnancy.”5
California stands committed to protecting access and supporting its healthcare providers, and has proclaimed itself a sanctuary state not only for those seeking reproductive healthcare, but also for individuals seeking gender-affirming care.
Managing Liability Risk Post-Dobbs
Because abortion remains legal in California, clinicians who provide reproductive services are legally protected when offering these services to patients who receive treatment in the state.
However, many clinicians are concerned about their exposure to civil and criminal liability when providing these services to an increasing number of patients from states where abortions are banned or restricted.
According to Planned Parenthood of Orange and San Bernardino Counties, in the year since the Dobbs decision, 451 out-of-state abortion patients, mostly from Texas and Arizona, have been treated in their clinics. This represents a significant increase from the 180 out-of-state patients treated in the prior year. This increase also represents an added risk for both physicians and patients. Since out-of-state patients need considerable time to make travel arrangements and plan for care, they are presumably later in their pregnancy term and can therefore be almost three times more likely than local patients to require a surgical abortion if they are in their second trimester.6
The Emergency Care Research Institute (ECRI) and the Institute for Safe Medication Practices (ISMP) list “clinician needs in times of uncertainty surrounding maternal-fetal medicine” as a 2023 top 10 patient safety concern. The U.S. Supreme Court’s overruling of Roe v. Wade has created uncertainty on which reproductive services may violate state laws, which has led many physicians to refuse or delay patient care.7
It is prudent for providers to make sure they implement fundamental risk management strategies to help navigate the post-Dobbs healthcare environment.
Risk Management Considerations for California Providers
1. Treatment of patients who reside in a state where abortion is banned or restricted. As with treating out-of-state patients via telehealth for any reason, practitioners must abide by the licensing laws of the state where the patient resides. Most states require physicians to be licensed to practice in the originating site's state, and some states require providers using telehealth technology across state lines to have a valid state license in the state where the patient is located.8 Some states are attempting to enforce their abortion bans across state lines.9 With this consideration, will these state licensing boards also be more likely to pursue an out-of-state physician who violates the rules for telemedicine? Since the landscape is rapidly changing, physicians should stay updated not only on licensing requirements in the state(s) in which they are practicing, but also on the licensing requirements in states where their patients are located and reside.
2. Medical Professional Liability (MPL) coverage for treating out-of-state patients. Even if a practitioner abides by state licensing laws, their MPL carrier may exclude coverage for treating out-of-state patients. Should an MPL carrier provide coverage for treating out-of-state patients, coverage is generally excluded for intentional or criminal acts. This would be the case where state law criminalizes healthcare providers for performing an abortion, or for aiding and abetting to obtain an abortion.10 Practitioners should contact their MPL carrier regarding their individual coverage and exclusions for coverage.
3. Treatment of out-of-state patients who travel to California for reproductive services. It is recommended that physicians review, and revise as needed, their current office practices and protocols regarding patient education, care transitions, and privacy practices.
a. Patient Education. A local OB/GYN who has seen an influx of out-of-state patients seeking pregnancy termination offers this sound advice: “Counsel these patients as though you will never see them again.” Since the practitioner may be unable, or severely limited in their ability to further treat the patient once they return to their home state, practitioners should be more forward thinking. Patient education should include an in-depth discussion of post-treatment complications, including remote complications, signs and symptoms, immediate action to be taken if complications arise, and the need to arrange and adhere to post-op care/visits.
b. Care Transitions. Although patients are instructed to return for a post-procedure follow-up appointment, many do not. The same physician who extensively counsels patients reported that approximately 75% of the out-of-state patients treated in their practice do not return to them for their post-procedure follow-up appointment due to the financial burden incurred from traveling across state lines. Patients should be informed pre-procedure of the provider’s limitations, if any, in providing post-procedure care and treatment once they return to their home state. Patients should be instructed to make arrangements, or have a plan for follow up with a provider in their own state, especially if an emergency arises.
c. Privacy Practices. Patient privacy post-Dobbs is an increasing concern.11 Review your office practices for release of information and reeducate staff on privacy practices. Consider seeking legal guidance for any requests to disclose information to law enforcement or in response to criminal proceedings regarding patients seeking or undergoing pregnancy terminations.
The Cooperative of American Physicians (CAP) remains committed to ensuring physician members have the most relevant and up-to-date resources and information to navigate the unprecedented post-Dobbs healthcare landscape. CAP’s team of risk management experts will continue to provide effective risk reduction education and guidance for optimal protection against potential out-of-state liability.
CAP is also carefully monitoring and supporting legislation that supports the best interests of the membership and ensures the highest level of their protection.
Of particular note is California Assembly Bill 571 (AB 571), which would “prohibit an insurer from refusing to issue or renew or terminating professional liability insurance for health care providers and from imposing a surcharge or increasing the premium or deductible solely based on any prohibited bases for discrimination, including a health care provider offering or performing abortion, contraception, gender-affirming health care, or care related to those health care services that are lawful in this state but unlawful in another state. The bill would prohibit an insurer from denying coverage for liability for damages arising from offering, performing, or rendering abortion, contraception, gender-affirming health care, or care related to those health care services, if those services are within the scope of the insured's license and the policy would otherwise cover liability for damages arising from performing or rendering other professional services within the insured's scope of license.”12
AB 571 is currently under review in the legislature and, if passed, will offer added safeguards for physicians in California who choose to perform abortion and other reproductive care services currently banned or restricted in other states.
The polarization between those states restricting reproductive healthcare services and those enacting laws to protect access may only widen. At the same time, the impact on patients and physicians alike will grow more profound. The risks of providing care to patients coming from states where these bans exist must be carefully understood and mitigated as much as possible.
If you have any concerns about providing abortion care in your practice, or have an urgent issue regarding patient care, live assistance is available 24/7 by calling CAP’s risk management hotline at 800-252-0555.
Margaret Martin is Vice President, Risk Management and Patient Safety. Gabriela Villanueva is CAP’s Government and External Affairs Analyst. Questions or comments related to this article should be directed to MMartin@CAPphysicians.com or GVillanueva@CAPphysicians.com.