Jun 27, 2022 - Health

Fractured post-Roe landscape leaves questions about cross-border care

Illustration of a healthcare cross, half red, half blue, with the colors fighting to take over the whole cross.
Illustration: Brendan Lynch/Axios

The fall of Roe v. Wade leaves health providers facing a patchwork of standards for reproductive care now that state lawmakers have final say over whether abortions — and potentially other facets of women's health — are performed within their borders.

Why it matters: Friday's Supreme Court decision is already deepening divisions between red and blue states and testing alliances that were forged in response to COVID-19 to facilitate telehealth services, obtain scarce medical supplies and fill gaps in the health care workforce.

Where it stands: States already had wide authority to set standards for health providers and payers, but could now opt to prosecute violators of trigger laws and other anti-abortion legislation enacted in response to the Supreme Court decision.

  • Seven Republican-led states have moved to either ban abortions or heavily restrict access to them in the aftermath of the ruling. Penalties vary, from fines and the loss of medical licenses to jail time.
  • Minnesota Gov. Tim Walz (D) and Massachusetts Gov. Charlie Baker (R) moved to deny any extradition request from states pursuing criminal charges against people who obtained or provided reproductive health care that's legal in their states.
  • Democratic governors in California, Washington and Oregon signed a pact to safeguard patients and providers, including discouraging cooperation with out-of-state law enforcement investigations concerning abortion.
  • Illinois Democratic Gov. J.B. Pritzker is calling for a special legislative session to consider expanding access to abortion in the state.

What they're saying: The American College of Obstetricians and Gynecologists says states' prosecutorial powers don't extend beyond borders — for example, to residents who travel to other states for abortion care, Molly Meegan, the group's chief legal officer, told reporters Friday.

  • The American Hospital Association cited "practical impacts" the new landscape will have in areas like maternal care, medical education and hospitals' obligations the Emergency Medical Treatment and Labor Act, a federal law that forces hospitals to treat medical emergencies without considering if a patient can pay.

Go deeper: The Supreme Court decision could play out most immediately in regions where a state with a strict ban is next to one where the procedure is legal.

  • Many people seeking abortion care crossed state lines and traveled significant distances long before the decision dropped on Friday, but providers believe that demand will pick up in "haven" states in the coming months.
  • New Mexico, one of six states that allow late-term abortions and where more than 5,800 abortions were provided in 2020, is preparing for an influx of patients from conservative states, the Los Angeles Times reported.
  • Planned Parenthood clinics in Illinois have seen a steady increase in patients from neighboring states poised to enact tough restrictions in the last year, Jennifer Welch, president of Planned Parenthood in Illinois, told Axios.
  • Abortion providers from Wisconsin, Tennessee and as far as Florida might come practice in Illinois clinics if their states ban abortion, Welch said, joining providers who are already working in multiple states and come to Illinois Planned Parenthood clinics.

The intrigue: The situation could test interstate compacts that enable health providers to work across state lines with a single license if they follow the laws of the state they are practicing in.

  • Experts say providers of reproductive health services should be able to work across state lines as long as they follow local laws. And it's possible (but not likely) that all of the states in a compact could agree not to provide abortion, said Isabelle Bibet-Kalinyak, a New-Jersey based attorney who represents health care companies.

Yes, but: States with abortion bans might also try to influence what providers can and cannot do outside their borders, as a condition for staying licensed.

  • In one hypothetical example, could Missouri's medical licensing board take action against a provider licensed in both Missouri and Illinois who performs an abortion in Illinois?
  • That's something John Kendzior, a Chicago-based attorney who represents providers and health systems, is concerned about.
  • "Where does the regulation stop? When do we get to trust the physician to exercise their medical judgment?" Kendzior told Axios.
  • With politicians shaping medical decisions, physicians and patients now can become targeted for efforts to end a pregnancy.
  • The American College of Emergency Physicians said on Friday it's "deeply concerned about the medical and legal implications of judicial overreach into the practice of medicine."
  • Jack Resneck, president of the American Medical Association, said in a statement that the Supreme Court decision "opens a deep political rift between states over access to reproductive health services that places sound medical practice and the health of patients at risk."

The bottom line: Putting abortion decision-making in the hands of states is fast creating a hodgepodge of legal standards that providers, patients and insurers will struggle to navigate.

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