As we await the Dobbs decision - expected to repeal Roe v. Wade, Reed Smith has established a working group to prepare clients for a post-Roe regulatory landscape. There are more questions than answers at this point, as many states have existing laws that outlaw abortion and others have prohibitions that are triggered by a repeal of Roe.  There are questions of preemption and potential actions by the Administration and Congress.  Will state legislatures change pharmacist or physician practice acts?  What about private rights of action?  And what about coverage by payors, especially when drugs are used for other purposes?  Or when drugs are used to manage miscarriages?  Who is going to document the varied circumstances that will make the difference between a crime, a lawsuit by a private actor, or no action at all?    

I was thinking about the use of drugs in abortions and the regulatory difficulties in identifying whether dispensing drugs (and which drugs) could create liabilities for pharmacists or prescribers.  A couple of weeks ago I listened to a NY Times Podcast on the History of Abortion in Mexico which discussed the use of an ulcer drug in Mexican abortion clinics.  In light of this example, I thought of a number of questions providers will need to consider if Roe v. Wade is repealed, such as: What about incomplete miscarriages?  Can you prescribe an abortion drug in this situation?  What kind of documentation will be required?

Providers, pharmacies, payors, drug manufacturers and many other companies operating in this industry may face complicated and unanticipated challenges in the wake of the Dobbs decision. These are just the questions our working group will consider over the coming weeks and months.