O'Melveny Insights 2023

34 After Dobbs The legal landscape remains fluid. States continue to enact laws regulating abortion care, and litigation is affecting how these laws operate on the ground. There are emerging conflict-of-laws issues as states enact competing requirements. There has also been activity at the federal level, with companies mindful that the guidance and enforcement efforts on the federal side may change as well. Many companies, including health-care companies, have had to reorganize their business activities against the backdrop of these unresolved issues. They are keen to understand the legal boundaries so they can facilitate access to abortion care where possible. Q: Given this uncertainty, how can companies mitigate the risks of providing abortion-care benefits? A: Most important is a careful analysis of the laws that may apply to the company, its employees, and its benefits plan. For now, there’s no way to eliminate risk, but by being mindful of the statelevel constraints, you can structure a benefit program in a way that limits risk, or that at least puts you in the same category as most other employers who are trying to accomplish this goal. Q: What are some of the legal developments we should look out for in the year ahead? A: I would expect to see battles over crossborder access to abortion care. The FDA recently authorized increased access to one of the major abortion-inducing medications, which may prompt disputes over state-law dispensing limitations. And as many state legislatures reconvene for the first time since the Dobbs decision, we’ll see whether there is political appetite for finely tuned restrictions targeting the solutions that companies have adopted over the past year to facilitate access to abortion care. O’Melveny has a long history defending abortion rights, from leading precedentsetting litigation to partnering with community and pro bono organizations on key initiatives.