Boston Business Journal | The Business of ‘Roe’
By Benjamin Kail
Story Originally Appeared in Boston Business Journal
Attorneys and legal experts often use words like “chaos” and “mess” to describe the fallout from the U.S. Supreme Court’s overturning of Roe v. Wade in June.
But the decision in Dobbs v. Jackson Women’s Health Organization has also opened the door to new business opportunities for law firms, as clients ranging from international corporations to small businesses seek guidance on an evolving state-by-state patchwork of abortion regulations.
Top law firms in Boston and across the country are gearing up their clients for uncharted battles over their day-to-day operations. Some are advising health care providers on privacy law liabilities. Others are working to hammer out language with employers considering expanded benefits including abortion and travel costs. Still others are navigating with stem cell researchers and fertility clinics the ramifications of fetal personhood proposals in several Republican-led states.
“We haven't thought of an area in law (the Dobbs decision) doesn't touch on,” Dianne Bourque, a Mintz attorney who advises health care clients and researchers, told the Business Journal.
But even beyond any financial considerations, many attorneys have partnered with advocates and policymakers to take action in response to Dobbs. Earlier this year, the Boston Bar Association established a working group on Dobbs-related issues after members sought resources or offered to help brainstorm ideas addressing the complex new post-Roe landscape.
"If you’re a practitioner now, you were taught to believe in a fundamental right to privacy enshrined in case law," Deborah Manus, a partner at Nutter and president of the BBA, told the Business Journal. "You woke up on a morning in June and that was no longer true. Our members were shocked and wanted to do something. We're making sure our members are partnering with people to make sure they can get information, and the hope is we're ready, when inevitable cases come up, to help our members help their clients."
Beyond advising client providers and companies, Mintz, Ropes & Gray, DLA Piper, Choate Hall & Stewart and other firms have invested in task forces and practice groups around reproductive health care, or posted in-depth blogs, guidance and podcasts on Dobbs’ potential ripple effects. Mintz’s recent posts offer ideas and tools for women and providers concerned about protecting health information or fearing civil or criminal liabilities from aggressive prosecutors seeking to enforce their abortion restrictions across state lines.
“There’s a lot of chaos right now,” Bourque said. “Our approach is to try to highlight how you can use existing law to insulate yourself. We can at least swing back. There’s no slam dunk, but dammit, stand up for yourself. You’ve got rights. You should use them.”
‘Broad implications’
Boston-based Foley Hoag recently launched a cross-disciplinary practice group dedicated to reproductive health care. Shrutih Tewarie, one of the partners leading the team, told the Business Journal that attorneys are helping clients rethink digital health, privacy, business counseling, investment and even free speech issues in the wake of Dobbs.
“We’re getting questions from clients and folks in different practice groups, and we realized very quickly there are labor, employment, health care and much broader implications,” she said.
For example, colleges and universities are "grappling with issues coming out of Dobbs," including impacts to health care and services they're providing to students through affiliated hospitals, pharmacies and clinical programs, Tewarie said. Course programs, student activism issues, speech on campus and endowment investment decisions are all up for discussion in a post-Dobbs context, she added.
Corporate attorneys, meanwhile, have an eye on compliance, ensuring clients are aware of rapidly shifting regulations — including new and proposed restrictions and protections — and setting “policies and procedures in place,” Tewarie said.
Earlier this month, Hogan Lovells, a global law firm that’s been expanding in Boston, joined the Legal Alliance for Reproductive Rights. The coalition — formed through the Bar Association of San Francisco’s Justice and Diversity Center — includes more than two dozen firms committed to bolstering equal access to reproductive health care and representing pregnant individuals and providers facing liabilities for seeking or obtaining abortions.
The firm also joined the New York State Attorney General’s Pro Bono Task Force on Reproductive Health, which operates a hotline offering legal information and referrals of health care providers and organizations providing material support.
Protecting access to care and legal services
Abigail Taylor, chief of the civil rights division of the Massachusetts AG’s office, told a Boston Bar Association panel in late July that protecting access to care, and shielding women and providers from liabilities, are among the team’s top priorities. AG Maura Healey’s office has worked with lawmakers and advocates on the legislation signed last month by Gov. Charlie Baker, which helps shield doctors, providers and patients from out-of-state investigations.
Taylor urged typically risk-averse attorneys in the private sector, whether working pro bono or not, “to think about creative lawyering in how to meet the moment” to ensure access to care and legal services, even as restrictive policies increasingly “scare people to prevent access as much as possible.”
Rebecca Hart Holder, executive director of Reproductive Equity Now, said during the bar association panel that her organization is “working on trying to create some kind of centralized place for lawyers who want to offer pro bono services.”
“There are going to be lots and lots of people, providers, funds, patients who need and want legal representation,” she said.
Meanwhile, anti-abortion groups who applauded the Dobbs decision continue to press for an end to abortion in Massachusetts.
Andrew Beckwith, president of the Massachusetts Family Institute, recently told WBUR that the group looked forward to a “re-energized fight to restore a culture of life” to the state.
Massachusetts Citizens for Life president Myrna Maloney Flynn told the Business Journal the group hopes employers “become as progressive and generous with their employee benefits so that mothers and fathers who choose life can access options that support comprehensive maternal and prenatal care, ample maternity (and) paternity leave, and high-quality child care.”
‘The mess’
Several law firms told the Business Journal that the biggest unknown after Dobbs is the potential “extraterritoriality” of increasingly restrictive abortion laws in about two dozen states.
Conflicts likely to play out in state and federal courts may determine whether states like Texas or Missouri can challenge group health plans covering abortion medication or abortion-related travel expenses for a Texan or Missourian employee of a nationwide company, experts said.
Amy Sheridan, a Sullivan & Worcester partner who specializes in employee benefits and compensation, said law firms, companies and regulators face a complex patchwork of laws over the next few months and years.
“Not just whether abortion is legal or illegal in a state, but we’re seeing signs that states are taking positions that activities occurring outside their state — including establishing group health plans — could result in either civil or criminal liability in that state,” Sheridan said. “That’s the mess … that states will try to apply their laws extraterritorially — in particular against employers that seek to cover abortions or travel benefits.”
Jamie Sabino, deputy director of advocacy for the Massachusetts Law Reform Institute, told the Business Journal that in the near future, local judges are likely to decide jurisdiction contests as out-of-state agencies pressure Bay State providers and employers for protected health information or records linked to residents or professionals who helped others obtain abortions.
“People are pulling out old law review articles looking at old doctrines to see what might apply,” Sabino said. “It could be three different issues or maybe 100. If I’m a Massachusetts employer and I have clients all over the country, including a client in Texas and I want to pay them or lend them money to come to Massachusetts for an abortion, what’s my liability? That’s the burning question.”
Legal experts say these untested cases — civil and criminal — are coming despite a wave of new state and executive actions designed to protect patients, doctors and local providers targeted by law enforcement from other states.
“None of these bans or criminal state laws can be enforced without enormous amounts of really sensitive health information,” Bourque, the Mintz attorney, said. “Our client providers hold that information and they’re going to get bombarded with regulatory requests, subpoenas, court orders, law enforcement officers showing up saying, ‘We need to see x, y and z, because we think our law has been broken.’ We have human beings sitting there trained to be healers and confronted by state troopers. It’s an impossible position to be in.”
Manus said Dobbs has sparked a host of questions across the business and legal communities. "You wouldn't think there'd be a nexus [in banking]," she said. "But what does a local bank do if some restrictive state wants the banking records of somebody who was in Massachusetts to use reproductive care?"
David Cohen, a law professor at Drexel University, told the Boston Bar Association during the July panel that prosecutors in states like Georgia may “try to take advantage of existing doctrines to target” providers in Massachusetts and elsewhere.
“If Georgia believes a fetus from conception is a person, a citizen, and a Massachusetts provider kills a person of Georgia, they could try to prosecute,” Cohen said. Such cases would be based on some states’ effects doctrine, which holds that “if someone takes an action in another state that has a large enough effect on the home state … that person could be prosecuted,” he said.
States barring abortion may also pursue conspiracy cases or wrongful death lawsuits against providers or those who aid and abet women seeking abortions and related travel, experts said. Cohen suggested that with Roe overturned, several anti-abortion states are increasingly likely to pass laws explicitly referencing interstate civil and criminal enforcement measures.
Hart Holder said what she’s heard most from Massachusetts providers is “a lot of fear and uncertainty” despite “a deep and abiding dedication to the life-saving care that they give” to residents and people traveling to the state.
She urged attorneys and advocates to be cognizant of the push for a federal abortion ban, and emphasized the importance of voting.
“While I believe strongly that this is a state-by-state, voter-by-voter battle, the goal, the slogan of the anti-abortion movement, is not banning abortion in the 26 states likely to act in a post-Roe America … it is 'ban abortion nationwide,'” she said. “We’re in a place where, for abortion funds, abortion providers, and increasingly patients, there are just new questions coming up daily that we haven't thought of before. And we're really working hard to be able to answer.”