A Post Roe World: California’s response to Dobbs v. Jackson Women’s Health

In the wake of the Supreme Court’s decision in Dobbs v. Jackson Women’s Health, California has taken significant steps to ensure continued ability to access abortion care in the state, and making additional funds available to providers delivering reproductive health care services. California has a long-standing history of protecting access to abortion care in the state, and has codified the ability of a resident to obtain an abortion prior to viability. Before the Dobbs decision was announced, California Governor Gavin Newsom introduced a “Reproductive Health Package” to help bolster California’s stature as a sanctuary state for abortion-seeking individuals traveling from states where abortion is illegal.

After Dobbs, Governor Newsom signed an executive order declaring California’s commitment to ensuring access for reproductive health care, and restricting California agencies from disclosing information relating to persons or entities that provide, secure, or receive support for reproductive health care services legally performed in California. This fall, Californians will have the opportunity to vote on amending the state constitution to permanently protect reproductive rights, including abortion and contraception.

There are several California laws that were in effect prior to Dobbs and that are currently under consideration in the state legislature which would impact providers in the reproductive health care space. In California, abortion and abortion-related services are basic health care services, and must be included as covered benefits in health insurance policies. As of January 1, 2023, insurers will be required to cover all abortion services without imposing a deductible, coinsurance, copayment, or any other cost-sharing requirement. Insurers may not impose any utilization management, utilization review, prior authorization, annual or lifetime limits on outpatient abortion services. These mandates decrease burdens on providers and will limit the barriers patients face when seeking abortion or abortion-related services both on a financial and administrative level.

The California legislature is also considering SB 1142 which, among other things, would establish an “Abortion Practical Support Fund” to increase access to abortion and research to support equitable access to abortion. If signed into law, qualifying nonprofit organizations and public research institutions will be able to use these funds for services including: coordinating practical support for abortions, case management of reproductive services, and public research initiatives that promote reproductive health care access. Moreover, grantees can utilize these funds to assist out-of-state patients seeking abortion or abortion-related services in California.

California’s budget for the 2022-23 fiscal year also contains several potential programs for abortion providers. The budget appropriates over $14 million for a supplemental payment program for nonhospital community clinics that incur costs associated with providing abortion services to Medi-Cal beneficiaries, $20 million to establish an abortion access safe haven pilot program in Los Angeles County, and a $40 million uncompensated care fund for abortion services for individuals below 400% of the federal poverty level.

The Dobbs decision leaves providers and health care institutions to navigate an ever-changing landscape of abortion care in their respective states. California appears poised to remain a state that will ensure the right to access reproductive health care in all forms, incentivize providers engaged in these services, and help prepare its providers to care for a potential influx of out-of-state residents who may seek this type of care. Despite these protections and greater access to funds to provide abortion and abortion-related services to non-California residents, California providers still need to pay attention to legislative actions in other states that may impact providers’ licensure in those states (should they have additional licenses). We will continue to closely monitor the impacts of states’ decisions and provide updates.

Foley is here to help you address the short- and long-term impacts in the wake of regulatory changes. We have the resources to help you navigate these and other important legal considerations related to business operations and industry-specific issues. Please reach out to the authors, your Foley relationship partner, or to our Health Care Practice Group with any questions.

As the impacts from the Dobbs v. Jackson Women’s Health Organization decision overturning Roe v. Wade continue to evolve, so too do new business and legal implications for companies around the United States. For more information on how to alleviate risk and safeguard your business, please contact a Foley lawyer today.

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