Months following the Supreme Court’s ruling in Dobbs v. Jackson Women’s Health Organization, the reproductive health climate remains clouded with terms lawyers—not to mention patients—never like to hear: “wait and see,” “to be decided,” “gray area,” “it depends.” Perhaps nowhere is the information gap of more crucial import than at the moment a patient walks through a provider’s door, initiates a potential care relationship, and, unless the provider is unusually transparent about all service offerings, makes assumptions about the ongoing nature of the relationship, and perhaps the unlimited nature of the specific care offerings. They will keep returning for care within the same specialty until the day the provider makes it clear, perhaps unexpectedly: “Sorry, we don’t do that. You have [weeks/days/hours] to [maybe] find someone else who will.”
Dobbs did not significantly impact services for many providers, as they always electively limited their reproductive health offerings on moral, religious, or other permissible grounds. However, a patient who has not sought reproductive services from the provider before may have no reason to know of these limitations or even realize there is reason to ask. Finding out in an urgent situation, when care from an alternate provider cannot be sought in a timely manner given the patient’s clinical condition, may present unwelcome challenges.
A 2019 study observed that most hospitals operating under the Ethical and Religious Directives for Catholic Healthcare Organizations (the ERDs) do not publicize their religious care restrictions to patients on their websites.[1] Promulgated by the United States Conference of Catholic Bishops, the ERDs govern the provision of health care in Catholic facilities and generally prohibit abortion, the promotion of contraception, and sterilization procedures.[2]
The ERDs are not the only rules that may inhibit an institution’s reproductive care offerings. For example, funds granted under Title X of the federal Public Health Service Act to support family planning services may not be applied in programs where abortion is a method of family planning.[3] Laws in multiple states also prohibit the use of “state funds” for abortion services and thus restrict the activities of public hospitals, clinics, and other government-funded providers.[4] Other grant programs may also restrict the services a funding recipient may offer. A provider may also elect to not take on the risk of offering procedures that are not covered by major insurance. For example, the Hyde Amendment[5] prohibits federal insurance coverage of certain abortion procedures, though states may elect to cover these procedures with their own funds if they choose.
In addition, even where a facility does not prohibit certain services, the individual physician has the right to make another choice. Several federal statutes protect providers who refuse to perform, accommodate, or assist with certain health care procedures on religious or moral grounds.[6] However, no federal law mandates that providers inform patients (or prospective patients) of these limitations at the time a care relationship is initially sought, or in advance. A patient is unlikely to know of the legal underpinnings of these restrictions unless they ask specific questions or unless the provider is proactively forthcoming about their reproductive health offerings and non-offerings. And even then, the individual physician may not have a clear understanding of all the nuances restricting specific care options at their workplace.
Again, though it may come as a surprise to patients, none of these laws are new, and none were enacted in response to Dobbs. They may nonetheless have a newly realized impact on patients confronted with the time limits of state abortion restrictions. Patients in states with gestational age laws (so-called “heartbeat bills”) that prohibit abortion after the detection of a fetal heartbeat (or other cardiac activity) on an ultrasound have around six weeks post-conception to obtain an elective abortion service, including the roughly two initial weeks during which pregnancy may not yet be detectable on a retail test. At that point, the patient may need to begin a hurried trial-and-error process to determine what services are available to them, by whom, and where.
Even in a non-urgent situation, a patient may predicate their ongoing consent to the care relationship on the assumption that they will have certain options should complications arise with a pregnancy in the future or should they elect to pursue family planning. If an option is foreclosed without notice, the patient may interpret it as a breach of trust. Worse, they may allege abandonment. While patient abandonment definitions vary across states, in general, abandonment occurs when a physician terminates care to a patient without sufficient notice to allow the patient to obtain ongoing care from an alternate provider.[7] In a situation where the patient deems an abortion to be the necessary care they require, they may have only days to act, depending on the state, and may face significant barriers to locating an alternate provider who is willing and has the capacity to perform the service. Some forms of emergency contraception available on a prescription-only basis must also be administered within a limited window to be effective.
A provider that chooses to remain silent on its reproductive health restrictions may have a greater chance of retaining patients who might not otherwise seek its services. However, it may also run a greater risk of liability and reputational damage from patients who feel they were misled on care options or allege they were not educated to seek alternatives until it was too late. Providers and medical ethics committees may want to revisit where, how, and in what detail they inform patients about restrictions in their reproductive care offerings.
[1] Takahashi J, Cher A, Sheeder J, Teal S, Guiahi M, Disclosure of Religious Identity and Health Care Practices on Catholic Hospital Websites, JAMA. 2019;321(11):1103–1104. doi:10.1001/jama.2019.0133.
[2] Ethical and Religious Directives for Catholic Health Care Services, U.S. Conf. Cath. Bishops (6th ed. 2018), available at: http://www.usccb.org/about/doctrine/ethical-and-religious-directives/upload/ethical-religious-directives-catholic-health-service-sixth-edition-2016-06.pdf.
[3] Title X of the Public Health Service Act, 42 U.S.C. 300, et seq.
[4] See e.g., Summary, Guttmacher Institute, State Family Planning Restrictions, available at: https://www.guttmacher.org/state-policy/explore/state-family-planning-funding-restrictions (last visited Oct. 19, 2022).
[5] Pub. L. No. 96-123, § 109, 93 Stat. 923 (1979); 42 U.S.C. § 1396 (2003).
[6] See the “Church Amendments” of the 1970s (42 U.S.C. § 300a-7 et seq.), which protect rights of health care providers (individuals and entities) that object to performing or assisting in the performance of abortion or sterilization on the grounds of moral or religious convictions, and also prohibit recipients of federal funds from making personnel decisions based on an individual’s assertion of such convictions.
See also, Section 1303(b)(4) of the Affordable Care Act (Pub. L. No. 111-148 as amended by Pub. L. No. 111-152), which provides that “No qualified health plan offered through an Exchange may discriminate against any individual health care provider or health care facility because of its unwillingness to provide, pay for, provide coverage of, or refer for abortions.”.
[7] See, e.g., New York’s inclusion of abandonment within the definition of professional misconduct: “Abandoning or neglecting a patient under and in need of immediate professional care, without making reasonable arrangements for the continuation of such care, or abandoning a professional employment by a group practice, hospital, clinic or other health care facility, without reasonable notice and under circumstances which seriously impair the delivery of professional care to patients or clients […]. N.Y. Educ. Law § 6530(3).
The California Business and Professions Code likewise provides that professional misconduct may include “[t]he abandonment of a patient by the licensee without written notice to the patient that treatment is to be discontinued and before the patient has had a reasonable opportunity to secure the services of another practitioner.” Section 4955(k).
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