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In the Post-Dobbs landscape, some states have passed laws criminalizing abortion access and subjecting abortion providers who provide abortion care to potential civil and criminal liability and professional discipline, including licensure revocation. In response, other states have passed shield laws to protect people who perform and undertake such care against the possibility of prosecution. Both create exposure and compliance risk for managed care organizations (MCOs).
While many states have abortion bans, so far there is no reported instance of states enforcing abortion bans across state lines. However, there is continued risk that a state broadly prohibiting abortion services could attempt to prosecute out-of-state abortion treatment that is lawful in the state where it was performed. This could include prosecution of activity that would facilitate such abortion treatment, which for MCOs could implicate authorizing the out-of-state care, referring members to out-of-state abortion providers, or even approving benefits for the out-of-state care.
For example, Alabama has a statute that could be construed to criminalize aiding and abetting abortion. The Alabama attorney general has threatened to pursue criminal prosecutions under the state’s general aiding and abetting or conspiracy statutes against people who assist a pregnant person in traveling out of state to obtain abortion care in a state where the abortion was legal. In a statement, the Alabama attorney general noted that using abortion medication to end a pregnancy in Alabama is illegal, even if the medication was prescribed remotely from a state where the medication is legal. This position creates risk of criminal liability to MCOs with members residing in Alabama or other states with criminal abortion restrictions to the extent they facilitate the member’s travel to another state for abortion treatment, such as through the provision of travel benefits, or facilitate prescription of abortion medication in another state (including through telehealth).
On the other hand, nearly a dozen states have enacted shield laws in response to states with abortion restrictions. These laws aim to protect not only patients who seek abortion care in a state where abortion is legal, but also those involved in the provision of the care. For example, many shield laws protect providers from out-of-state prosecution for providing abortion-related services, including via telehealth, when such services are provided from within a state where abortion is legal. Some of these laws, like Hawaii’s shield law, protect the act of paying for abortion-related services as well.
- Many states banned abortion after the Dobbs decision, and Alabama’s attorney general has pledged to enforce Alabama’s abortion ban across state lines
- Other states passed shield laws to protect people seeking, providing or assisting abortion care against interstate prosecution of abortion bans
- MCOs should carefully administer abortion or related travel benefits for members residing in states with abortion bans
- MCOs should also consider reviewing provider contracts and benefit plans to ensure that terms comply with abortion bans and shield laws