Rarely has there been greater anticipation of an impending United States Supreme Court judgment than in the case of Dobbs v. Jackson Women’s Health Organization, expected by the end of the court’s term this month. If the leaked draft opinion of Justice Samuel Alito holds, Roe v. Wade will be reversed, ending a period of 50 years when the abortion rights of women were held to be guaranteed by the United States Constitution. In Massachusetts, abortion rights have been guaranteed under state law since 2020. But don’t assume that the Dobbs decision can have no impact here. The legal landscape ahead is far from certain for colleges, health care providers, and other businesses that function both within and beyond our state’s borders.
Companies may have employees working in more than one state or living in other states while commuting here to work. They may also have licenses to do business in a variety of states. Insurers may cover people in multiple states. Colleges and universities admit students from all 50 states (and abroad), and hospitals serve patients from different states. And while the leaked draft will surely change in some respects, its language casts a wide net. The government, Alito suggests, has a powerful interest in protecting “prenatal life at all stages of development.” If the thrust of the Alito draft opinion holds, “abortion” will probably not be narrowly defined as a specific medical procedure taking place in a surgical setting. Rather, if the draft language is included in the final decision, a state legislature or Congress may be constitutionally free to ban pharmaceutically induced abortions or Plan B or other morning-after pills, all of which can be delivered to patients across state lines by mail or courier services.
Any Massachusetts entity that offers or covers reproductive health benefits or provides reproductive care or counseling that could affect residents of other states would be wise to begin planning now. Considering these issues without delay is important: Some 26 states are expected to restrict abortion rights, and some among them have so-called “trigger” laws that will take effect automatically if the Supreme Court reverses Roe. Other states that intend to eliminate or restrict abortion rights can be expected to move expeditiously.
Can states that enact highly restrictive abortion laws attempt to enforce them against individual residents and institutions of states such as Massachusetts that reject such restrictions? The answer is yes.
Would Massachusetts residents and institutions be insulated from out-of-state restrictions by our state’s legislation, enacted in 2020, to protect abortion rights, or by a pending amendment to the state Senate budget designed to prevent other states from enforcing their laws against our citizens? The answer is not yet clear.
Massachusetts employers may find themselves caught in the middle. Employees residing in a restrictive state may fight to retain their abortion coverage and related benefits; at the same time, that other state — or individuals permitted to seek penalties — may sue Massachusetts employers for “aiding and abetting” an abortion. Some Massachusetts employers may try to find a workaround for out-of-state employees whose reproductive health care benefits are suddenly lost. There are many ways that employers may find themselves in disputes with restrictive states that must be decided in the courts.
If the rationale of Alito’s leaked draft opinion stands, issues other than abortion will likely arise. More than once, Alito insists that a ruling such as that contemplated in the draft “concerns the constitutional right to abortion and no other right,” and that “nothing” in Dobbs “should be understood to cast doubt on precedents that do not concern abortion.” But there is no such thing as a one-off appellate opinion. Advocates and judges will not ignore the rationale in other cases. The Alito draft uses expansive language that could readily, and rather obviously, be applicable to other cases, such as challenges to contraception treatment and benefits. Alito writes that there is no constitutional right to an abortion because, in part, that right is not “deeply rooted in this Nation’s history and tradition” or “implicit in the concept of ordered liberty.” An attorney may well argue or a judge conclude that some other claim is not constitutionally protected because it is not “deeply rooted” in our nation’s history or tradition.
While efforts by a state to enforce laws outside its own borders have been historically frowned upon, no one can predict with certainty how such issues will be resolved in future cases in the wake of a reversal of Roe, for the reasons Alito articulated. If widely different laws are enacted state by state in a vacuum of federal law, appellate courts across our nation will be called upon to resolve conflicts between and among the states. To such questions, there will be no single answer for the United States of America, at least for the foreseeable future. Which employees may have an abortion, where, and in what circumstances they may do so, will be answered by judges in myriad ways.
This article was updated on June 10 to clarify the reference to morning-after pills.
Margaret H. Marshall, who was chief justice of the Massachusetts Supreme Judicial Court from 1999 to 2010, is now senior counsel at Choate Hall & Stewart LLP. Joan Lukey, a past president of the American College of Trial Lawyers, is co-chair of the Complex Trial and Appellate Group at Choate. The authors discuss this topic further in a podcast available on Choate’s website.