The Possible Overturn of Roe v. Wade and its Effects on Healthcare
Health Law Talk Presented by Chehardy Sherman Williams
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Conrad Meyer (00:25):
And good afternoon, everyone. Welcome to another edition of Health Law Talk here at Chehardy Sherman Williams in the station today your wonderful attorney, healthcare attorney host, Conrad Meyer. Rory Bellina. Good
Rory Bellina (00:38):
Conrad Meyer (00:39):
And today, you know, it’s been a slow start to the year. We, we admit that, but today we, we felt it was necessary to come on and, and do a show on the on the decision recently, or the leak, not even, I can’t even call it a decision, but the leaked opinion in the in the DOS versus Jackson Women’s Health Organization case to the case that now everyone is claiming could overturn Roe v. Wade. So interesting situation, Rory.
Rory Bellina (01:08):
Yeah, I think we were all, you know all either, you know, following the news or watching TV. I think this was Monday night when it came out that there was a leak decision that Politico got a copy of, and then the decision made it out there, and it was, you know, roughly a hundred pages. And from what we, what we can tell, it was a first draft that was circulated internally by the justices in February of this year. So we don’t know anything more than that. the Chief Justice came out and spoke this week and said that, yes, this was a draft opinion. Mm-hmm. he didn’t really say more than that, besides directing the US Marshals to open investigation on how it was leaked. I don’t remember this ever happening in my life, but regardless it went from there and it, but the court’s kind of been silence into that, and everyone expected them to come with a decision on this in June, you know, right before they kind of took their break. But here it is. And so everyone’s had a chance to dissect it, and we thought we would do it and, and try to focus on it as much as possible from a healthcare perspective.
Conrad Meyer (02:09):
Well, and, and also from a legal posture perspective, and honestly from both the healthcare and legally, you know, from a, from just a legal, cuz sometimes I think that that gets lost. I mean, when you, you know, you mentioned a moment ago about a leak opinion, and, and you haven’t seen that in your lifetime. I haven’t seen it either. And as lawyers, I sat there and I watched the TV with my, I was in awe, honestly, I could not believe what I was seeing. Now, I clerked in, in, in federal court for a federal judge you know, not a, I say I worked as a research attorney for a federal judge. And, and while I was there the very first day I walked in that courtroom, he told, he brought me to chambers and said, What goes on in my chambers, what goes on in my courtroom, stays in my courtroom? You don’t tell you anything. You don’t do anything. You don’t, everything stays in house. So I’ve always assumed that especially, you know, to honor the institution, the integrity of the institution and what I saw in this late opinion just blew me away.
Rory Bellina (03:08):
Sure. And it’s not just a, a screenshot or
Conrad Meyer (03:11):
It’s the whole,
Rory Bellina (03:13):
Or pictures of it. I mean, it’s in the official formatting and font. I mean, this, you could tell that this was prepared by a law clerk, and it, this is a draft that went around. So, you know it, it’s really interesting that it happened. But moving on from that point, I think it’s important that we look at, you know, what it says, right, What it references regarding Roe and Casey, and then how, you know, I’d like to talk about how we see this affecting healthcare going forward.
Conrad Meyer (03:38):
Well, I, and I agree with that. So first focus to your point on that, on the first point about how it affected Roe and Casey I see a lot of people commenting on this, and they have no idea what it means. They think they know, they talk, they think they, they understand it. But it, you know, that somehow now this is gonna ban abortions and it, it’s all done it. And that’s not exactly what it did. It, it, it, it basically analyzed Roe and Casey decisions and, and, and looked at Roe as a, as a quote exercise of Rod’s judicial power, meaning that, that it took away the state’s rights to vote on what they believe was state issues. And it created its own, I guess its own paradigm, its own rule for, for regarding the abortions. And what the analysis on the roe in the Casey case said that there was nothing in the Constitution about that. It, there was nothing that ever specifically said a right to an abortion in the Constitution. And that Roe created this right this and pulled the right of states to vote on it away from the states. And so when looking at Roe and Casey, this opinion basically grants the states to determine its own course.
Rory Bellina (04:53):
Yeah. I, I think that that was really important. You know, a lot of the, I think a lot of the media tried to distiller water it down when this opinion was leaked out as, you know, kind of what’s like the big point or what’s like the big, the big caption that’s gonna capture attention. And everyone said that this is going to ban abortions, or this is going to, you’re not gonna be, you’ll go to jail if you have an abortion. But I, I, that’s not really it. And I think it’s important that you go back and you look at Roe, which was I believe, 73. That’s right. It was late 69 when it was ar when it was eventually brought through the courts and argued. And, you know, that was the seventies. That was that Vietnam post-Vietnam era. And a lot was going on. The plaintiff in the case, it’s a, it’s a pseudonym for it.
Jane Rowe, instead of doing John Doe, they did Jane Rowe. but, but it was all about, it was it a constitutional right for a, a pregnant female to have an abortion at the time. And that’s kind of what the, the case hinged on in Roe. And Supreme Court at that time decided that it was a, a constitutional right. you know, essentially for a woman to make, make that decision. And, and that went along for a long time. I think Casey didn’t come along until eight, was it 92? Maybe? I think it was, it was 20 or 10 or 20 years later. It took a while for, for Casey to come around. But, but all that it did was, it said that it was a constitutional right. So it kind of, like you mentioned, took away the power from the states and, and put this in place. And then Casey came along and kind of put in this undue burden test which if we were doing a Con Law podcast, we could talk about that for numerous episodes. you know, and they had in there these different criteria. And in Casey, the undue burden was, I believe it was, it was telling your husband was the one that was undue an undue burden. And then now we have this one out of Mississippi that went through the, this
Conrad Meyer (06:44):
Is the Jacksons Women’s Health Organization mm-hmm. . And interestingly enough, I mean, and to your point to Casey, it talked about undue burden. And they were trying to see, they were hoping a think in Ro and Casey to sort of have, have, you know, this very divisive issue seemed to flush out. And it never seemed to flush out because states kept on doing enacting different laws in their, within that state that might, that, that that sort of half addressed or, you know, try to get around Casey, if you will. And so now, now this is very interesting. This case, this Jackson women’s health organization put together a new law in Mississippi. And the argument, I think from the government was, Hey, you can’t really slice and dice this anymore. You either have to overrule mm-hmm. row, you know, or Yeah. Or affirm it going forward. There’s no more half measures.
Rory Bellina (07:38):
And that was really, I thought that was a really unique strategy. And, and if this decision holds true, I’m sure the the people that, that, I believe Jackson in this case was the, the health clinic or the health organization in this case, they might regret doing that because they said in their arguments, there were snippets of their oral arguments in the Supreme Court that they essentially told the Supreme Court, You, we can’t have it in the middle anymore. You either have to overturn Roe or you have to affirm it or
Conrad Meyer (08:05):
Reaffirm it. Because remember, the Mississippi rule, the law was, was that there it would prohibit abortions after 15 weeks of pregnancy. And so the argument from the government was, Well, wait a minute. If, if we allow the you know, you, you, oh, sorry. The Supreme Court draft opinion was if we allow this to go forward, then, then technically it would be no different than overruling Roe and Casey anyway. Sure. So it came down to this, Well, do we overrule Rowe and Casey or not? And that’s what the decision was. And of course, as, as the draft opinion, again, not, not a, not a binding opinion, right? It’s, it’s just a draft opinion quote. We hold that Roe and Casey must be overruled. And they say that, they go further to say that Alito says the Constitution makes no reference to abortion and no such, Right.
Is implicitly protected by, by any constitu provision. And then they go through the analysis of, of, okay, there’s a, there’s a prong test mm-hmm. to determine whether or not abortion is held in our national traditions and, and in history and some, some sort of a prong test. And and ultimately they decided that it did not. Right. And so the question is, is is, and I see it from a legal procure legal perspective, take the substances out of, of Roe v Wade, Right. And, and put another issue on it, right? Do states have the right to democratically decide the issues that they want to either ban or let go forward or not?
Rory Bellina (09:33):
And, and what’s really, I keep saying what’s really interesting, so that a few times already, I keep thinking of more things that are interesting, is that states have been doing that in the background for years. I think we’re up to possibly 16 states right now that have already enacted legislation. I think it’s being called in the news, like a trigger effect not 16, 26, 26,
Conrad Meyer (09:56):
Sorry, six state, the triggering the
Rory Bellina (09:57):
Triggers. So the moment that if this were to be overturned, it’s already there, you know, the groundwork has already been done, so. Right, right. You know, I think that’s a really important part that, that we’ve, everyone has kind of relied on Roe as this backstop to protect them, but states have, have moved past it, and were kind of split down the middle with 26 states already, you know, making progress and, and deciding that they wanna enact legislation that will ban or prohibit certain types of abortions, you know, pending if row wherever to be overturned, which according to this draft, it looks like it’s gonna happen.
Conrad Meyer (10:32):
And, and see here’s what I follow a lot of the news media and people who are just, you know, going off the rails and not really reading the opinion, because it clearly states in the, in the draft opinion quote, it is time to heed the constitution and return the issue of abortion to, to the people’s elected representatives. I mean, you know, what, what more democratic way to decide whether or not you want to for or against us within your state and using the democratic process to vote for people that would then vote your the
Rory Bellina (11:06):
People’s will. Exactly. And then I think that’s very important hit on that this is not banning abortions, or this is not prohibiting abortions. It’s returning the choice to each state to decide how that state wants to govern itself on this topic.
Conrad Meyer (11:23):
And Ali’s and Ali’s draft opinion actually does that, you know, Ali’s opinion actually does that, I think if you, if you, well, if you look at Ali’s opinion, I would tell you that quote, the permissibility of abortion and the limitations upon it are to be resolved, like most important questions in our democracy by citizens trying to persuade one another and then voting that is what the constitution and the rule of law demands. So if you’re a pure democracy type of person, which I, I don’t think anyone would argue that you’re not, we’re not for the democratic process, we’re not for democracy, then from a pure legal argument, take away the fact that it deals with abortions. It could be any other issue that may be federally legislated, you know, similar than to have the, the, this opinion return the right to govern themselves to the states, I think is a very important legal, legal issue.
Rory Bellina (12:17):
Yeah. Yeah. And, and it really comes in an interesting time that, you know, we’re, we’re coming out of covid, we’re coming out of a lot of the vaccination requirements and, and you know, restrictions. We had workplace, cms workplace, we had private employer, all that. It’s really an interesting time that they’re, they’re picking up such a big case because, you know, a lot of Ro first and foremost, or this case is, is really a con law question, but it also hinges very heavily on healthcare and what the government does allow or doesn’t allow you to choose to do to yourself or to your own body. and then obviously with states. So it’s, it’s an interesting time. I think it was you know, it could be coincident or not that it’s coming after, after Covid, but regardless, I think it’s got big effects on healthcare system, healthcare providers. I know you were talking about, you and I were talking about that a lot offline on before the show. Yeah. How is this gonna proceed? So let’s just assume we’ll be very clear that this is a draft opinion, but let’s assume that it’s a five to four vote and essentially rose over
Conrad Meyer (13:22):
Rory Bellina (13:22):
Right? So let’s assume that that occurs, you know, what do we see? And, and we could talk about Louisiana, but then nationwide and, and, and I don’t know all 26 states what their, what their procedures are. But at least here in Louisiana, we know that there’s some, there’s some things that will kind of happen immediately, like these trigger effects that they talk about.
Conrad Meyer (13:41):
Well, I mean, you have to look at the individual state laws. Correct. And you have to see what states have these trigger laws in effect, and, and, and what happens, And I’m sure that’s again, by individual state, right?
Rory Bellina (13:50):
Right. But then going past that, you know, it, it’s gonna become a question of mm-hmm. I think there’s a lot of things to be unwound for this, because, you know, you hear that different states have different regulations as far as, you know, what is considered an abortion? Is it, is it the full medical procedure? Is it giving, you know, the plan B or the morning after pill? There’s a lot of discrepancies state by state on what that
Conrad Meyer (14:15):
Is. Right. And I, and you know, what the, if, if you had to do a state by state analysis, which I’m sure someone’s gonna do very quickly. Sure. I think that’ll be interesting. So you, you, you’d have to check yeah. Your state law to determine what, what, you know, if you’re a healthcare provider, what would be the appropriate thing to do or not do based on, on that triggering
Rory Bellina (14:36):
Law. And then there’s also talking about what are the exceptions. So some states have exceptions for if there’s a medical emergency. Some states have exceptions. If, if it puts the, the, the fetus or the, the mother in danger. Some states have exception for rape and incest. So again, that state by state survey is going to, is gonna really be important to see, you know, how things, how things pan out.
Conrad Meyer (14:59):
Yeah. Especially, I mean, you know, I think there are some states that have the exceptions also for the health of the mother. So in other words, if there’s a life-threatening incident that the mother could be in, in, in physical jeopardy, you know, that that could have some, you know, triggering effect to that. So I think it’s state specific you know, but we just have to figure out what, what state, what the trigger is for that state.
Rory Bellina (15:20):
Sure. And then in just in Louisiana today, there was a house committee, I was listening to it, a house committee that’s trying to add language to the criminal code where if an abortion is performed, it’s not only a civil violation really on, on your medical license, but it could also be a criminal code. And I think they’re trying to get it to fall under one of the, I think it was second degree murder. So it
Conrad Meyer (15:39):
Louisiana is for, for the providers.
Rory Bellina (15:40):
For the providers, Yes. So they’re, they’re even trying to, to, to go that far. So, you know, I think that this is gonna be an evolving topic, and I think one thing that’s really gonna be interesting with it is what’s gonna happen from a telemedicine standpoint, Where does this go? If we are in, we’re in Louisiana and we’ve got let’s say we have a strict prohibition per se, or, or very tight prohibition. and I believe, and haven’t verified this, but probably leave the nearest physical state where they don’t have these prohibitions is Illinois. So mm-hmm. , you know, what occurs if you see a provider in Illinois through a Televis visit, you know, is that, but then the medication is being shipped here to Louisiana, which is where technically the abortion would be occurring, because you’d be taking the medication here to end the pregnancy.
Conrad Meyer (16:33):
So that’s assuming that the medication would be quote unquote illegal to get, I mean, in other words, in other words, if following, I have beana with you, I haven’t looked at Louisiana Law yet. because honestly, I never thought I would see what’s
Rory Bellina (16:46):
Happening. Right. And it’s a real trick bag because now you could have medication that’s illegal to prescribe, possess, dispense, Correct. In, in Louisiana, but not in Illinois or New York or California. So you can have it, you can possess it. I mean, I, it’s somewhat similar, but somewhat different to the medical marijuana. You’ve got things that are legal to possess and, you know, distribute, consume in states, but, but not in others. So it’s legal to have it in this state, but not in that state. So, you know, Right. Is it going to be, and, and what if it’s prescribed through tele telehealth, you know, but the patient is here, but they’re technically seeing a provider that’s licensed in Illinois, that’s situated in
Conrad Meyer (17:26):
Illinois. All, all good questions, Rory. I mean, all good questions and ones that I think, you know, are premature technically because we don’t have a real opinion. Correct. Correct. And I guess, I mean, I’m speculating, you know, that, that I’m a, you know, is this gonna go forward? Sure. You know, I’m kind of, I got some alphabet soup coming outta my mouth, but I just don’t know if what I’ve read is gonna be the final signed Right. Opinion. especially now it’s been leaked. I mean, you know, you would assume, you would assume that the d that the Supreme Court would, you know, either stick with this or I don’t, I don’t know. But anyway, whatever happens, if it does get overturned from a procedure standpoint, then I know, I know Louisiana does have a triggering law. Yep. And so I know, you know, based on that, we would have to look and see if the, for example, the plan B medication. Cause that’s really the only thing that would apply on a telemedicine standpoint. Sure. is that medication, and if it does apply, boy, is that gonna be interesting if people do that and, and, and, and do, in other words, do a telemedicine service Sure. And are prescribed and does that remote physician where it’s legal in, in Illinois, for example, somehow, does that apply to him or her if it’s illegal in Louisiana?
Rory Bellina (18:42):
Yeah. I think that that’s going to be a big mix that we’re gonna have to follow.
Conrad Meyer (18:46):
I would posture this though, Roy, because under Louisiana law, under telemedicine, even on jurisdiction, it’s where the patient is. So in other words, where the patient is located. So even if a physician is out of state, they have to have a telemedicine special purpose license to be practicing that in Louisiana. Isn’t that correct? So
Rory Bellina (19:04):
Let, but let’s assume that they do.
Conrad Meyer (19:05):
And so if they’re doing that and they’re offering professional medical services over te medicine to patients in Louisiana, and that patient in Louisiana is receiving medication that technically is illegal or criminal in Louisiana, then I would ponder that that physician is also now committing a criminal act and, and could be subject to board action and maybe possibly criminal action by the location of the district attorney where the patient’s located. Sure. and definitely the board for doing that for prescribing a, an illegal medication via using the telemedicine license they’ve issued to that physician. Sure,
Rory Bellina (19:47):
Conrad Meyer (19:48):
Rory Bellina (19:48):
Sense. It’s a No, it does. And it’s a big thing that, that, that I was thinking about. You know, someone made it was on the news, someone made the, an analogy, which again, is somewhat similar, but a little bit different as well, of, are you going to have, is a patient, let’s say it’s a big state, you know and depending on where the providers are, but say California, are you gonna have to Yeah, you gonna have to California, Are you gonna have to cross like straight over the border from Arizona to California? And once you’re inside the border, then you can get on a tele, a televi or a telehealth call and get it, because technically then you’re in Cal. I mean, that was a very nuanced question that they had, but, you know, I think it, it’s got real, it could have real implications for patients and patient access is a big
Conrad Meyer (20:31):
Thing. Well, I guess one thing, if you let, let’s just, you know, let’s just extrapolate on what could happen. So if hypothetically, let’s just say that it is overturned and the right of indivi of individual states to, to govern themselves on this issue through this democratic process is now given back to the states, it’s, it’s given back to each, each state and the republic. So the triggering events occur so immediately 26 states would now have abortion as illegal in that particular state. So I, I would think that the other states, and usually I, from what I read or what I’m saw on the news was that mostly the Midwest and the southern states have banned it, and the coastal states have approved it. I mean, I’m speaking very generally, of course. Sure. So that would mean that a patient would have to drive, like you just said, across the country to go to you know, Illinois or California Yep. Or the East Coast somewhere to have an abortion. Yep. If that is the case. So I I, I, I agree it definitely is an access issue. but it’s, it’s a tough one. It’s a real tough one. Yeah. You know, without, without getting into the substance of roe.
Rory Bellina (21:41):
Sure. Sure. So I think, you know, provider wise, I think it’s gonna be important for providers to need
Conrad Meyer (21:47):
Rory Bellina (21:47):
Know the law to follow this as much as possible, because there could be, you know, big changes that come, even if you’re in a hospital setting and you’re not a, even just if you’re an OB gyn or if you are, if you’re a primary care physician. Right. You know, or, and you, you have to follow this because it could become overnight where you prescribing some sort of contraceptive or, or I don’t think it goes as far as birth control, but like the Plan B pill, like overnight, you could be having criminal implications if you, you know, by not
Conrad Meyer (22:19):
Following this, if, if your state law has something that goes to that level. Correct.
Rory Bellina (22:22):
Correct. So I think it’s important for everyone to, to follow this as close as possible. Definitely check in with their, with their state law, with their state attorneys if their, if their patient base is something that you know of, of females that, that could have children, because it could be something that could definitely affect them.
Conrad Meyer (22:40):
Agree. I think so, I think, I think, you know, we’ll, we’ll see what happens. We’re gonna monitor this. We’re gonna put this on the table and we’re gonna monitor it and keep, just keep ourselves on the pulse of what happens. I mean, how can we not, It’s gonna be in the news no matter what. Yep. when it comes out. So we’ll be on top of this and we’ll let our readers know. Our listeners know exactly what happens and we’ll, you know, next, I think the next time we get on air, once the decision comes out, let’s pull a sampling of some of the states that are triggered. And depending on the ruling, if it does overrule Roe and Casey, and then see how that affects those triggering states from a legal perspective as to healthcare providers.
Rory Bellina (23:20):
Yep. I think that’s a great idea.
Conrad Meyer (23:22):
All right. Great. Well, look, thank you very much Rory, for coming on the show today, and everyone else who’s listening in to Health Law Talk here at Chehardy Sherman Williams, you’ve got two of the best healthcare attorneys in the area, Rory Bellina, Conrad Meyer, giving you the latest and greatest updates on healthcare, news, legal policy, you name it in the healthcare field. Stay tuned, and we’ll see you soon.
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Dobbs v. Jackson Women’s Health Organization
On May 2, 2022, a news organization, Politico, released an unpublished draft opinion of the courts potential ruling on Dobbs versus Jackson women’s health organization. In essence, the draft opinion calls for the overruling of Roe v. Wade along with the Casey case. According to the draft opinion, the basis for overruling Roe v. Wade is to return to the states the power to self govern on the issue of abortion. According to Justice Alito, Roe v. Wade was an exercise in “raw judicial power” that needed to be addressed in a true democracy by giving states the right to determine for themselves the legality of abortion. According to research, over 26 states already have laws in effect, the so-called “triggering laws,” that should Roe v. Wade be overturned, would ban abortion. The question becomes what happens to healthcare providers who are caught in the middle should Roe v. Wade be overturned and are located in states that suddenly would ban abortion. In addition, how far do these “triggering laws” go in determining what is permissible or not. For example, do any of these laws implicate the use of the “Plan B pill” and consider the prescription of the “Plan B pill” as abortion. If so, what are the implications from a telemedicine perspective should physician located in a state where abortion is permissible prescribed a patient a Plan B pill in the state that has banned abortion? In this very timely episode, listen with healthcare attorneys Conrad Meyer and Roy Bellina as we discuss the implications of the release of this draft opinion and what effect it might have on healthcare providers.
Health Law Talk, presented by Chehardy Sherman Williams, one of the largest full service law firms in the Greater New Orleans area, is a regular podcast focusing on the expansive area of healthcare law. Attorneys Rory Bellina, Conrad Meyer and George Mueller will address various legal issues and current events surrounding healthcare topics. The attorneys are here to answer your legal questions, create a discussion on various healthcare topics, as well as bring in subject matter experts and guests to join the conversation.
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