Following the historic U.S. Supreme Court decision in Dobbs v. Jackson Women’s Health Organization overturning Roe v. Wade and Planned Parenthood v. Casey, attorneys and legal scholars are anticipating an avalanche of legal and practical issues emanating from the fact that there is no longer a federal constitutional right to obtain an abortion. Vesting individual states with the power to regulate abortion, below are three key issues to consider:

 

  1. Childcare and Family Leave

Dobbs leaves open issues related to childcare and family leave.  Although women, including those who choose to have an abortion, continue to be afforded workplace protections such as medical leave under the Family Medical Leave Act (FMLA), the opinion does not consider the impact of unpaid maternity leave on the workforce. The FMLA only provides parents with job protection for twelve weeks without guaranteed pay during that time. Childcare is prohibitively expensive for many families and without guaranteed pay, families may experience a decline in their earnings that may ultimately result in workers leaving the workforce. Additionally, women who are balancing their physical and mental health with their economic security and caretaking obligations may feel compelled to return to the workforce prematurely. Either way, families may unexpectedly face the difficult choice between rushing back to work to support their family or not returning at all to avoid mounting childcare costs. As a general matter, however, women who choose to have an abortion can still qualify for medical leave under the FMLA, Pregnancy Discrimination Act (PDA), or Americans with Disabilities Act (ADA).

 

  1. Health Insurance Coverage

The Dobbs decision leaves the regulation of abortion services to the various states. Health insurance coverage issues springing from the decision will therefore turn not on where an abortion is performed, but on state laws governing the group or individual plan that would cover the medical expenses of the insured. Group health plans, particularly those sponsored by multi-state employers, may provide coverage under plans issued by insurers where the contract situs is another state. It continues to be true that insurance plans issued in other states may provide different levels of requirements, or none at all, regarding coverage of abortions. States with legislatures disfavoring abortion may go further in prohibiting insurance coverage for abortion care or other healthcare services the state legislatures view with disfavor.

Other group health plans may be provided through self-insured ERISA plans, under which state laws that would otherwise relate to the plan are largely preempted. While it appears that a state law prohibiting coverage of abortions may not survive a challenge on the basis that it is a state law that relates to the self-insured ERISA plan, an exception to ERISA preemption applies to “generally applicable” criminal laws. Many employers have, in the wake of the Dobbs decision, announced policies of reimbursing travel for employees and their dependents to go out-of-state for abortion services. Some states have made “aiding and abetting” an abortion a criminal act. It remains to be seen whether a state will attempt to pursue criminal charges against an employer reimbursing such travel-related costs as “aiding and abetting” an abortion, and therefore argue that the criminal law is saved from the ERISA preemption of state laws.

There are currently more questions than answers concerning the impact of the Dobbs decision on group health plans maintained by employers. Initially, it seems that the greatest challenges in this area will be faced by employers whose plans have historically covered abortions, and who wish to continue to provide this benefit for their employees who live in states that will restrict abortion access in view of Dobbs. Such employers should proceed with caution in this area and, at least, consider: (1) reviewing the provider network in their group health plan and expanding it, as necessary, to provide reimbursement for services provided by out-of-state and currently out-of-network providers of abortion services; (2) if feasible to do so, changing from an insured group health plan to a self-insured plan not subject to the restrictions imposed on a carrier to pay for abortion services performed in a state in which such services could not be covered under an insured plan.

 

  1. Bioethics

Abortion has long been a bioethics topic that is polarizing and divisive. The bioethical analysis is built upon four well-established principles: (1) respect for a patient’s autonomy; (2) nonmaleficence or the “do no harm” concept; (3) beneficence involving providing helpful care; and (4) justice. While vigorous debate of all these principles is likely to resume in light of Dobbs, principles of “justice” present a particularly compelling concern. A significant component of a “justice” analysis involves an assessment of the fair distribution of benefits and burdens. This is sometimes referred to as “health equity,” which the Centers for Disease Control and Prevention (CDC) defines as a fair and just opportunity to attain their highest level of health. The CDC has recognized that achieving “health equity” requires: (1) focused and ongoing societal efforts to address historical and contemporary injustices; (2) overcoming economic, social, and other obstacles to health and healthcare; and (3) eliminating preventable health disparities.

Without access to legal abortions, the death rate linked to pregnancy and childbirth is likely to increase. Minority groups have made significant use of abortion services and losing access to abortion in their home state is likely to have a disproportionate impact on minority groups living in those states. Low-income families could also be hard hit by eliminating access to abortion services because of the expenses involved in traveling to a state where abortion services are legal and available. Furthermore, the extra-territorial enforcement of laws implicates not only the principle of justice but also infringes the constitutional right of interstate travel first recognized in Shapiro v. Thompson, 349 U.S. 618 (1969).

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Photo of Jessica M. Carroll Jessica M. Carroll

Partner, Employment Law, Healthcare and Litigation Departments

Ms. Carroll concentrates her practice in litigation, with an emphasis on representing healthcare providers at both the state and federal levels and within arbitration forums. Her experience encompasses serving as counsel for hospitals in medical staffing…

Partner, Employment Law, Healthcare and Litigation Departments

Ms. Carroll concentrates her practice in litigation, with an emphasis on representing healthcare providers at both the state and federal levels and within arbitration forums. Her experience encompasses serving as counsel for hospitals in medical staffing and peer review disciplinary matters arising out of issues related to quality care and patient safety. She also provides risk management guidance on issues at the intersection of various state laws and medical licensing regulations, including the potential impact of physician medical staff disciplinary actions triggering the obligation to report to the National Practitioner Data Bank (NPDB).

Ms. Carroll’s work includes the representation of hospitals, physicians, physician practices, and pharmaceutical companies in matters related to restrictive covenants, breach of contract, violations of due process and fundamental fairness, defamation and trade libel claims, as well as matters related to professional licensure and credentialing. She also handles anti-competitive claims alleging violations of New Jersey’s Anti-Trust Act, the Sherman Anti-Trust Act, and the Lanham Act, in addition to employment related claims, including violations of the New Jersey Law Against Discrimination (NJLAD) and the Conscientious Employee Protection Act (CEPA).

Ms. Carroll counsels her clients on the most effective and economical legal strategies by evaluating liability and exposure against alleged damages. She handles a broad range of day-to-day tasks beginning at the inception of a matter, including orders to show cause, serving and responding to discovery, ensuring compliance with court-ordered deadlines, appearing and defending depositions, and retaining experts, through resolution by way of settlement, motion practice, or alternative dispute resolution.

Contact information:

jcarroll@greenbaumlaw.com | 973.577.1910 | vCard  | LinkedIn

For more information visit the Greenbaum, Rowe, Smith & Davis LLP website.

Photo of Joel Clymer Joel Clymer

Partner, Employment Law and Litigation Departments

Mr. Clymer primarily focuses his practice on employment litigation and counseling. His litigation experience encompasses the investigation, evaluation and litigation of discrimination and retaliation claims under Title VII of the Civil Rights Act, the Age Discrimination in…

Partner, Employment Law and Litigation Departments

Mr. Clymer primarily focuses his practice on employment litigation and counseling. His litigation experience encompasses the investigation, evaluation and litigation of discrimination and retaliation claims under Title VII of the Civil Rights Act, the Age Discrimination in Employment Act (ADEA), the Americans with Disabilities Act (ADA), the Family & Medical Leave Act (FMLA), the New Jersey Law Against Discrimination (NJLAD), the New Jersey Conscientious Employee Protection Act (CEPA), and other employment law statutes. He provides representation from pre-litigation status through trial in state and federal court, including the defense of clients in appellate court proceedings.

In the area of employment counseling, Mr. Clymer provides guidance on a variety of employment issues in the workplace, including accommodation requests, employee benefits, leaves of absence, workplace investigations, workplace policies and procedures, employee handbooks, and severance agreements. He advises clients on legal compliance issues including those arising under the Occupational Safety & Health Act (OSHA) and the federal Fair Labor Standards Act (FLSA), in addition to other state and federal laws, rules, and regulations.

Mr. Clymer’s experience with employment-related workplace investigations is broad-based. He has conducted prelitigation investigations to determine the likelihood of successful litigation and has counseled those clients to avoid litigation where possible. In matters where employment litigation is already underway, he has conducted workplace investigations to assess the validity of employment discrimination, harassment, retaliation, and whistleblower complaints during all stages of the litigation process from initial filing through trial.

Mr. Clymer also represents clients in commercial matters and has represented businesses in the litigation of restrictive covenants, shareholder/member disputes, breach of contract actions, and other business tort matters in state and federal court.

Mr. Clymer previously served as a Deputy Attorney General at the New Jersey Office of the Attorney General, Department of Law and Public Safety, Division of Law. In that role, he handled civil defense litigation in state and federal court with a primary focus on employment litigation, including claims filed under Title VII, ADEA, ADA, FMLA, NJLAD, and CEPA. He also represented governmental agencies in state and federal trial and appellate courts and in administrative hearings before the Office of Administrative Law

Contact information:

jclymer@greenbaumlaw.com | 732.476.2514 | vCard  | LinkedIn

For more information visit the Greenbaum, Rowe, Smith & Davis LLP website.

Photo of John Zen Jackson John Zen Jackson

Of Counsel, Healthcare and Litigation Departments

Mr. Jackson’s healthcare practice emphasizes litigated matters in judicial and administrative forums, including professional liability claims, licensure and credentialing issues with administrative agencies and health care entities, reimbursement and insurance fraud disputes. He is Certified by the…

Of Counsel, Healthcare and Litigation Departments

Mr. Jackson’s healthcare practice emphasizes litigated matters in judicial and administrative forums, including professional liability claims, licensure and credentialing issues with administrative agencies and health care entities, reimbursement and insurance fraud disputes. He is Certified by the Supreme Court of New Jersey as a Civil Trial Attorney and has extensive experience in trying jury cases to a verdict.

In addition to trying numerous individual medical liability cases for a variety of healthcare providers, Mr. Jackson was lead defense counsel for a group of New Jersey plastic surgeons sued in connection with the silicone gel breast implant litigation, and has been involved in a number of high-profile mass tort litigation programs for medical devices or healthcare products, including pedicle screws, diet drugs, and Rezulin.

Beyond trial advocacy, Mr. Jackson is an experienced appellate litigator. He served as defense counsel in the New Jersey Supreme Court cases limiting the liability of physicians for suspected exposure to the HIV-virus, and for alleged lack of informed consent regarding abortion procedures. Mr. Jackson has served as amicus counsel for the Medical Society of New Jersey, the American Medical Association, and the New Jersey Hospital Association in appellate matters before the New Jersey Supreme Court and Appellate Division. He has been involved in numerous reported opinions.

Mr. Jackson has handled a variety of commercial litigation issues as well as the defense of qui tam actions under the Federal False Claims Act and insurance coverage and insurance fraud cases. He has represented clients in professional licensure and hospital privilege disputes before state administrative bodies and hospital credentialing committees as well as judicial review through the New Jersey Supreme Court. He has additional experience as a hearing officer for hospital privilege disputes.

Mr. Jackson is the author of over 80 published articles in medical and legal publications on a broad range of healthcare, tort liability and trial technique topics. He has been a member of the Editorial Board of MDAdvisor, a peer-reviewed journal for the New Jersey medical community, since its inception in 2007.

Contact information:

jjackson@greenbaumlaw.com | 732.476.3336 | vCard

For more information visit the Greenbaum, Rowe, Smith & Davis LLP website.

Photo of Jemi Goulian Lucey Jemi Goulian Lucey

Partner, Employment Law, Litigation and Healthcare Departments

Ms. Lucey is a trial attorney who focuses her practice on employment, higher education, and complex litigation matters in state and federal court. She represents private and public entities, including institutions of higher learning, in employment…

Partner, Employment Law, Litigation and Healthcare Departments

Ms. Lucey is a trial attorney who focuses her practice on employment, higher education, and complex litigation matters in state and federal court. She represents private and public entities, including institutions of higher learning, in employment discrimination and retaliation actions, professional negligence cases, Title IX claims, and general business disputes. She also lectures and consults on employment and human resources law and provides guidance related to litigation avoidance and the practical implications of various state and federal laws affecting employers.

Contact information:

jlucey@greenbaumlaw.com | 732.476.2502 | vCard | LinkedIn

For more information visit the Greenbaum, Rowe, Smith & Davis LLP website.

Photo of James A. Robertson James A. Robertson

Partner and Chair, Healthcare Department

Mr. Robertson’s healthcare practice is reflective of his significant expertise across a wide range of legal disciplines, enabling him to effectively counsel clients on a myriad of healthcare regulatory, corporate and litigation matters. He represents a diverse array…

Partner and Chair, Healthcare Department

Mr. Robertson’s healthcare practice is reflective of his significant expertise across a wide range of legal disciplines, enabling him to effectively counsel clients on a myriad of healthcare regulatory, corporate and litigation matters. He represents a diverse array of healthcare industry clients including for-profit and not-for-profit healthcare and hospital systems, academic medical centers, nursing homes, home health agencies, medical device manufacturers, pharmaceutical companies, integrated delivery networks, physicians and physician practice groups, and healthcare private equity funds.

Mr. Robertson provides comprehensive representation in connection with all types of healthcare transactions, including corporate mergers and acquisitions, joint ventures, and divestitures. He assists clients with the structuring and creation of clinically integrated networks (CINs), organized delivery systems (ODSs), accountable care organizations (ACOs), multiple employer welfare arrangements (MEWAs), and health insurance companies. He oversees the establishment and purchase/sale of individual physician and group practices, ambulatory surgery centers, nursing homes, and assisted living facilities. He structures and negotiates compensation arrangements with physicians in connection with employment and exclusive contracting arrangements, medical directorships, physician recruitment initiatives, hospital department management, office and equipment leases, and management services arrangements. He also negotiates managed care agreements and risk-sharing arrangements with payors and represents healthcare clients in payor litigation.

On the regulatory and compliance fronts, Mr. Robertson regularly provides guidance on issues related to fraud and abuse laws, including the federal Anti-Kickback Statute and Stark Law, the New Jersey Codey Law, the certificate of need statute and Community Healthcare Asset Protection Act (CHAPA), as well as other regulatory compliance issues associated with healthcare transactions and physician-integration arrangements. He develops, implements, and maintains corporate compliance programs for hospitals and other providers in the healthcare industry and is well-versed in the compliance issues associated with, and the implementation of requirements under, the Health Insurance Portability and Accountability Act (HIPAA), the Emergency Medical Treatment and Labor Act (EMTALA), and the Affordable Care Act (ACA).

In the area of information privacy and data security, Mr. Robertson advises healthcare clients on issues arising under HIPAA and the Health Information Technology for Economic and Clinical Health Act (HITECH). This includes the drafting and negotiation of HIPAA compliant business associate agreements with third party vendors, drafting and assisting in the enforcement of privacy and security policies within client organizations, and providing guidance on record retention requirements and the physical or electronic storage of medical records. In addition, he represents healthcare clients in investigating, reporting, and remediating information breaches and the liability such breaches create under various information privacy and security laws.

Mr. Robertson assists clients in seeking advisory opinions from federal and state regulatory agencies, and regularly represents healthcare entities in Medicare, Medicaid, charity care, graduate medical education (GME) and disproportionate share hospital (DSH) reimbursement matters before state administrative agencies and the federal Provider Reimbursement Review Board. His work also encompasses internal audits and investigations, responding to government inquiries, investigations, subpoenas and search warrants, and providing advice in connection with voluntary self-disclosures and corporate integrity agreements (CIAs).

Mr. Robertson is a resource for addressing medical staff matters, providing counsel on fair hearing requirements and designing state-of-the-art medical staff bylaws. He also provides guidance in connection with strategic initiatives on system affiliations including the establishment of outpatient health care offices, diagnostic imaging facilities and ambulatory surgery centers.

Contact information:

jrobertson@greenbaumlaw.com | 973.577.1784 | vCard | LinkedIn

For more information visit the Greenbaum, Rowe, Smith & Davis LLP website.

Photo of Thomas C. Senter Thomas C. Senter

Partner, Employment Law, Healthcare and Tax, Trusts & Estates Departments

Mr. Senter’s practice focuses primarily on all aspects of employee benefits and executive compensation. He provides counsel to employers, senior executives, Boards of Directors and Board Committees.

Mr. Senter has extensive experience related…

Partner, Employment Law, Healthcare and Tax, Trusts & Estates Departments

Mr. Senter’s practice focuses primarily on all aspects of employee benefits and executive compensation. He provides counsel to employers, senior executives, Boards of Directors and Board Committees.

Mr. Senter has extensive experience related to equity and non-equity based qualified and non-qualified retirement and compensation plans, stock option and deferred compensation arrangements, fiduciary issues under ERISA, plan qualification and administration issues, and employee health and welfare plans. He also advises clients on compliance with Section 409A of the Internal Revenue Code, the Affordable Care Act, HIPAA and COBRA, and assists in the negotiation and drafting of employment and separation agreements.

Contact information:

tsenter@greenbaumlaw.com | 732.476.2650 | vCard

For more information visit the Greenbaum, Rowe, Smith & Davis LLP website.

Photo of Neil M. Sullivan Neil M. Sullivan

Of Counsel, Corporate and Healthcare Departments

Mr. Sullivan concentrates his practice in healthcare and insurance law, with a particular emphasis on the intersection of healthcare finance and delivery. He regularly represents and counsels health plans and healthcare providers in regulatory compliance and filings…

Of Counsel, Corporate and Healthcare Departments

Mr. Sullivan concentrates his practice in healthcare and insurance law, with a particular emphasis on the intersection of healthcare finance and delivery. He regularly represents and counsels health plans and healthcare providers in regulatory compliance and filings, and alternative financial models for healthcare delivery, including Organized Delivery Systems (ODS), Accountable Care Organizations (ACO), Multiple Employer Welfare Arrangements (MEWA), and health system equity ownership or participation in insurance organizations.

As Assistant Commissioner of the New Jersey Department of Banking and Insurance (DOBI) from 2010-2014, Mr. Sullivan oversaw the Office of Life and Health during a period of fundamental change in both the healthcare and insurance sectors. This encompassed the implementation of the Affordable Care Act (ACA) and the Dodd-Frank Wall Street Reform and Consumer Protection Act; the emergence of alternative financial models for health care delivery, including CO-OPs, ACOs, and health system equity ownership or participation in insurance organizations; and the transition to electronic health records and implementation of the ICD-10 mandate.

In his role at DOBI, Mr. Sullivan had overall responsibility for the implementation of insurance reforms under the ACA, including the establishment of a high-risk pool and feasibility study of health insurance exchanges, and rationalizing conflicting points of state and federal law. He served as the DOBI Commissioner’s designee on the NJ Individual Health Coverage (IHC) and Small Employer Health (SEH) program boards, the Mandated Health Benefits Advisory Commission, and the NAIC Regulatory Framework Task Force and Senior Issues Committee, and acted as liaison with the Centers for Medicare & Medicaid Services (CMS) over ACA implementation.

Contact information:

nsullivan@greenbaumlaw.com | 973.577.1804 | vCard  | LinkedIn

For more information visit the Greenbaum, Rowe, Smith & Davis LLP website.