At a 2019 event in Little Rock, Arkansas, the late Supreme Court Justice Ruth Bader Ginsburg acknowledged that the concept of “We the people” had evolved significantly since the signing of the Constitution in 1787. Justice Ginsburg stated that:
[T]he concept of “We the people” has become ever more inclusive. People who were left out at the beginning — slaves, women, men without property, native Americans — were not part of “We the people.” Now all the once left out people are part of our political constituency. We are certainly a more perfect union as a result of that.
However, even as we approach Women’s Equality Day on Friday, August 26, 2022, which commemorates the 1920 adoption of the 19th Amendment to the Constitution, the rights of “We the people” are being eroded through a decision by the United States Supreme Court on June 24, 2022. In Dobbs v. Jackson Women’s Health Organization, the Supreme Court held that there was no federal constitutional right to abortion, thus permitting states to pass and enforce legislation that limit abortions without Constitutional restrictions and penalize individuals who obtain abortions and potentially the third parties who assist them. In doing so, the court reversed nearly 50 years of precedent from the Court’s decision in Roe v. Wade (1973) and Planned Parenthood Pennsylvania v. Casey (1992), cases that had previously held that states may not place limits on abortions.
Dobbs raises a myriad of questions when it comes to equality and reproductive rights, as well as religious freedom. Those who oppose the ruling argue that it curtails the rights of women (and some transgender individuals) of their status as free and equal citizens. Further, it interferes with the fundamental right to make essential health care decisions free of governmental interference. Proponents of religious freedom argue that restricting abortion access is a violation of rights because it denies individuals health care options consistent with their religious beliefs and interferes with religious freedom and privacy.
Consequently, both the New Jersey state government and the federal government have responded swiftly to address concerns.
New Jersey’s Response
In January 2022, New Jersey enacted S49, the Freedom of Reproductive Choice Act, making access to abortion a guaranteed right under state law. In direct response to Dobbs, New Jersey enacted two additional laws in June 2022. S2642 prohibits extradition for crimes related to reproductive health services. “Reproductive health services” means medical, surgical, counseling, or referral services relating to the human reproductive system, including services relating to pregnancy or the termination of a pregnancy. S2633 authorizes certain countersuits against liability for providing reproductive health care services permitted under state law and clarifies access to these services in New Jersey by out-of-State persons.
Specifically, the law provides:
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When a judgment has been entered against a person in any state with respect to reproductive health care services that are permitted under the laws of New Jersey, the person may recover damages from the party that brought the action leading to that judgment or any party that has sought to enforce the judgment.
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Communication to a health care provider, information obtained by the health care provider by a patient or the patient’s legal representative, or information obtained from an examination of a patient relating to reproductive health care services may not be disclosed unless the patient or that patient’s authorized legal representative explicitly consents to the disclosure in writing.
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Courts may not issue a subpoena requested by any court of the United States or of any other state or government if the subpoena relates to reproductive health care services that are permitted under the laws of New Jersey.
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A public entity of this state or any individuals acting on the public entity’s behalf may not provide any information or expend or use of time, money, facilities, property, equipment, personnel, or other resources in furtherance of any interstate investigation or proceeding seeking to impose civil or criminal liability upon a person or entity for the provision, seeking or receipt of or inquiring about reproductive health care services that are legal in this state, or assisting any person or entity providing, seeking, receiving, or responding to an inquiry about reproductive health care services.
Additionally, the Reproductive Equity Act (REA) (A4350/S2918) has been proposed in both the New Jersey Assembly and the New Jersey Senate. The proposed bill builds on the Freedom of Reproductive Choice Act and contains provisions to meaningfully expand access to abortion in New Jersey and guarantees the right to abortion and contraception in New Jersey. Among other things, the proposed bill would:
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Increase access to “reproductive health care” and appropriate $20 million in state funding for the effort;
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Require health insurance companies in New Jersey to cover abortions with no cost-sharing or out-of-pocket expenses; and
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Require any state program that provides benefits for pregnancy-related care to provide benefits for abortions.
The Assembly bill was introduced on June 20, 2022 and referred to the Assembly Health Committee. The identical Senate bill was introduced in the Senate on June 23, 2022 and referred to the Senate Health, Human Services and Senior Citizens Committee.
On July 11, 2022, New Jersey announced its creation of a Reproductive Rights Strike Force, bringing together officials across the Department of Law and Public Safety and including representatives from the Division of Law, Division of Criminal Justice, Division of Consumer Affairs, Division on Civil Rights, the New Jersey State Police, and the Office of the Insurance Fraud Prosecutor.
The Strike Force will initiate civil and criminal enforcement actions and develop other strategic initiatives to protect access to reproductive health care and abortion care for New Jersey residents and residents of other states who travel to New Jersey to access such care. The Strike Force will work with the Office of the Attorney General to coordinate enforcement actions across the entire Department of Law and Public Safety.
The Strike Force will use available civil and criminal enforcement tools to protect the right to obtain abortion care in New Jersey, including by holding accountable individuals who threaten or intimidate patients or providers at clinics that provide reproductive health care; by holding accountable individuals who violate patient confidentiality requirements; and by developing strategic initiatives and undertaking investigations to help secure the private data of patients and providers and to limit the sharing of personal health-related data with third parties.
On July 20, 2022, U.S. Attorney Philip R. Sellinger and New Jersey Acting Attorney General Matthew J. Platkin announced a state-federal partnership designed to secure and protect access to reproductive health care for New Jersey residents and those who travel to New Jersey to seek such care. The partnership will also ensure state-federal collaboration to protect health care workers, increase security for providers of abortion care, and protect the data privacy rights of patients and those who assist individuals seeking reproductive health services.
Key aspects of this partnership include:
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Providing guidance from the Division of Criminal Justice within the Department of Law and Public Safety to all 21 of New Jersey’s County Prosecutors about charges they may bring against individuals who interfere with access to abortion rights in order to hold them accountable for crimes committed against patients, providers, and clinics.
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Intelligence sharing between the U.S. Attorney’s Office, the Attorney General’s Office, the Division of Criminal Justice (DCJ), the New Jersey Office of Homeland Security and Preparedness (OHSP), and New Jersey’s local, county, and state law enforcement partners. The New Jersey State Police will also provide time-sensitive information sharing and data analysis to law enforcement across all 21 New Jersey counties.
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Creating joint public awareness and education programs so that abortion patients, providers, and clinics are aware of their rights under the law and the resources available to secure and expand access to critical reproductive care.
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Directing funds (through the OHSP) provided by the Reproductive Health Security Grant Program to high-risk reproductive health facilities so that they may improve security through, for example, “target hardening” (i.e., increased security measures) and active shooter trainings.
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Continuing enforcement of the Freedom of Access to Clinic Entrances Act (FACE), a federal law that prohibits obstructing access to reproductive health services through violence, threats of violence, or property damage. The U.S. Attorney’s Office encourages anyone with knowledge of FACE Act violations to contact the civil rights hotline at (855) 281-3339 or through the complaint portal on the U.S. Attorney’s Office, District of New Jersey, website: District of New Jersey.
Federal Response
On the Federal level, on June 27, 2022, the Department of Health and Human Services (HHS), Department of Labor, and the Department of the Treasury, the agencies responsible for enforcing the Affordable Care Act (ACA), issued a letter directing health plans and insurers that group health plans must cover, without cost-sharing, birth control and contraceptive counseling for plan participants, and noting that the agencies will be enforcing this mandate for those who fail to comply.
Thereafter, HHS issued guidance regarding the Health Insurance Portability and Accountability Act (HIPAA) Privacy Rule as related to reproductive health care services covered under a health plan, including abortion services. The guidance provides that access to comprehensive reproductive health care services, including abortion care, is essential to individual health and well-being and the HIPAA Privacy Rule supports such access by giving individuals confidence that their protected health information (PHI), including information relating to abortion and other sexual and reproductive health care, will be kept private. The guidance reminds covered entities that HIPAA permits, but may not require, disclosure of PHI when such disclosure is required by law, for law enforcement purposes, or to avert a serious threat to health or safety.
On July 8, 2022, President Biden signed an Executive Order seeking coordination with federal agencies in an effort to protect reproductive rights. In particular, the Executive Order:
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Safeguards access to reproductive health care services by directing the Secretary of HHS to take the following actions and submit a report within 30 days on efforts to: (1) protect and expand access to abortion care including medication; (2) ensure emergency medical care for pregnant women and those experiencing pregnancy loss; (3) protect and expand access to contraception and reproductive health services, including family planning services and providers; (4) launch outreach and public education efforts regarding access to reproductive health care services, including abortion, to ensure that Americans have access to reliable and accurate information about their rights and access to care; (5) convene volunteer lawyers to encourage robust legal representation of patients, providers, and third parties lawfully seeking or offering reproductive health care services throughout the country.
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Protects patient privacy and access to accurate information by addressing the transfer and sales of sensitive health-related data, combatting digital surveillance related to reproductive health care services, and protecting people seeking reproductive health care from inaccurate information, fraudulent schemes, or deceptive practices.
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Promotes safety and security by ensuring the safety of patients, providers, and third parties, and to protect the security of other entities that are providing, dispensing, or delivering reproductive health care services.
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Coordinates implementation efforts by establishing an interagency Task Force on Reproductive Health Care Access responsible for coordinating Federal interagency policymaking and program development.
On July 11, 2022, HHS announced new guidance and communication to ensure that all patients (including pregnant women and others experiencing pregnancy loss) have access to the full rights and protections for emergency medical care afforded under the law. HHS, through the Centers for Medicare & Medicaid Services (CMS), issued clarifying guidance on the Emergency Medical Treatment and Active Labor Act (EMTALA) and reaffirmed that it protects providers when offering legally-mandated, life- or health-saving abortion services in emergency situations. The EMTALA requires that Medicare hospitals provide all patients an appropriate medical screening, examination, stabilizing treatment (which may include medical and/or surgical interventions, including abortion), and transfer, if necessary, irrespective of any state laws or mandates that apply to specific procedures. If a state law prohibits abortion and does not include an exception for the health or life of the pregnant person or draws the exception more narrowly than EMTALA’s emergency medical condition definition, that state law is preempted.
However, it should be noted that, on August 24, 2022, in State of Texas v. Becerra, the District Court of Texas ruled that the HHS guidance was unconstitutional. The District Court reasoned that the guidance goes “well beyond EMTALA’s text, which protects both mothers and unborn children, [but] is silent as to abortion, and preempts state law only when the two directly conflict.” The District Court found that the guidance was “unauthorized” and stated that, “since the statute is silent on the question, the [g]uidance cannot answer how doctors should weigh risks to both a mother and her unborn child. Nor can it, in doing so, create a conflict with state law where one does not exist.”
On July 15, 2022, the House of Representatives passed H.R.8296 – Women’s Health Protection Act of 2022, which, if enacted, will codify abortion rights and protect those individuals who travel for reproductive care. Specifically, the bill provides that a health care provider has a statutory right to provide abortion services, and may provide abortion services, and that provider’s patient has a corresponding right to receive such services, without any of the following limitations or requirements:
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A requirement that a health care provider perform specific tests or medical procedures in connection with the provision of abortion services, unless generally required for the provision of medically comparable procedures.
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A requirement that the same health care provider who provides abortion services also perform specified tests, services, or procedures prior to or subsequent to the abortion.
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A requirement that a health care provider offer or provide the patient seeking abortion services medically inaccurate information in advance of or during abortion services.
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A limitation on a health care provider’s ability to prescribe or dispense drugs based on current evidence-based regimens or the provider’s good-faith medical judgment, other than a limitation generally applicable to the medical profession.
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A limitation on a health care provider’s ability to provide abortion services via telemedicine, other than a limitation generally applicable to the provision of medical services via telemedicine.
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A requirement or limitation concerning the physical plant, equipment, staffing, or hospital transfer arrangements of facilities where abortion services are provided, or the credentials or hospital privileges or status of personnel at such facilities, that is not imposed on facilities or the personnel of facilities where medically comparable procedures are performed.
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A requirement that, prior to obtaining an abortion, a patient make one or more medically unnecessary in-person visits to the provider of abortion services or to any individual or entity that does not provide abortion services.
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A prohibition on abortion at any point or points in time prior to fetal viability, including a prohibition or restriction on a particular abortion procedure.
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A prohibition on abortion after fetal viability when, in the good-faith medical judgment of the treating health care provider, continuation of the pregnancy would pose a risk to the pregnant patient’s life or health.
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A limitation on a health care provider’s ability to provide immediate abortion services when that health care provider believes, based on the good-faith medical judgment of the provider, that delay would pose a risk to the patient’s health.
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A requirement that a patient seeking abortion services at any point or points in time prior to fetal viability disclose the patient’s reason or reasons for seeking abortion services, or a limitation on the provision or obtaining of abortion services at any point or points in time prior to fetal viability based on any actual, perceived, or potential reason or reasons of the patient for obtaining abortion services, regardless of whether the limitation is based on a health care provider’s degree of actual or constructive knowledge of such reason or reasons.
In short, a government will not be able to limit the right of a health care provider to:
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Prescribe certain drugs;
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Offer abortion services via telemedicine; or
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Immediately provide abortion services when the provider determines a delay risks the patient’s health.
Furthermore, a government will not be able to require a provider to:
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Perform unnecessary medical procedures;
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Provide medically inaccurate information;
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Comply with credentialing or other conditions that do not apply to providers whose services are medically comparable to abortions; or
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Carry out all services connected to an abortion.
In addition, governments will not be able to:
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Require patients to make medically unnecessary in-person visits before receiving abortion services or disclose their reasons for obtaining such services; or
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Prohibit abortion services before fetal viability or after fetal viability when a provider determines the pregnancy risks the patient’s life or health.
The bill provides that a court will be able to consider the following factors determining whether a limitation or requirement singles out or impedes access to abortion services:
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Whether the limitation or requirement, in a provider’s good-faith medical judgment, interferes with a health care provider’s ability to provide care and render services, or poses a risk to the patient’s health or safety.
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Whether the limitation or requirement is reasonably likely to delay or deter some patients in accessing abortion services.
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Whether the limitation or requirement is reasonably likely to directly or indirectly increase the cost of providing abortion services or the cost for obtaining abortion services (including costs associated with travel, childcare, or time off work).
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Whether the limitation or requirement is reasonably likely to have the effect of necessitating a trip to the offices of a health care provider that would not otherwise be required.
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Whether the limitation or requirement is reasonably likely to result in a decrease in the availability of abortion services in a given state or geographic region.
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Whether the limitation or requirement imposes penalties that are not imposed on other health care providers for comparable conduct or failure to act, or that are more severe than penalties imposed on other health care providers for comparable conduct or failure to act.
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The cumulative impact of the limitation or requirement combined with other new or existing limitations or requirements.
The bill provides for the ability to defend against a claim that a limitation or requirement violates a health care provider’s or patient’s statutory rights. Under the bill, the defending party will have to establish, by clear and convincing evidence, that:
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The limitation or requirement significantly advances the safety of abortion services or the health of patients; and
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The safety of abortion services or the health of patients cannot be advanced by a less restrictive alternative measure or action.
The bill, if enacted, will enable the Department of Justice, individuals, or health care providers to bring a lawsuit to enforce the law. Additionally, states will be subject to lawsuits for violations and are not immune. The bill applies to restrictions imposed both prior and subsequent to the law’s enactment.
It remains to be seen whether the Senate will take action on the Women’s Health Protection Act of 2022 (S.4132). However, it is doubtful since it has been blocked twice before.
On July 28, 2022, HHS, DOL, and Treasury issued guidance regarding birth control coverage and making clear that contraceptive coverage is guaranteed at no additional cost under the Affordable Care Act no matter where someone lives or works.
On August 3, 2022, President Biden signed a second Executive Order to protect reproductive rights and access to abortion services, directing the Secretary of HHS to:
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Consider actions to expand access to abortion and other reproductive health services through Medicaid for patients who travel out of state for services;
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Improve data and research on the impact of access on women’s health; and
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Ensure health care providers comply with federal nondiscrimination laws “so women receive medically necessary care without delay” which may include “providing technical assistance for health care providers who may be confused or unsure of their obligations in the aftermath of the Supreme Court decision in Dobbs; convening providers to convey information on their obligations and the potential consequences of non-compliance; and issuing additional guidance or taking other appropriate action in response to any complaints or reports of non-compliance with federal non-discrimination laws.”
Today, on Women’s Equality Day, which commemorates the 1920 adoption of the 19th Amendment to the Constitution granting women the right to vote, we are reminded of the resiliency of women and the achievements that remain possible when people band together toward the common goal of equality. Although strides have been made, much more work still needs to be done. While the Federal government and states like New Jersey are advancing measures to continue to protect the rights of women in the wake of recent events, other states have taken strong steps to strip away women’s rights.
This summary is for informational purposes only and is not intended to constitute legal advice. This information should not be reused without permission.
