THE OUTLOOK FOR HEALTH CARE IN 2023:

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June 24, 2022

SCOTUS overturns Roe v. Wade

Daily Briefing

    The Supreme Court on Friday voted 6-3 to overturn the 1973 Roe v. Wade decision and the 1992 Planned Parenthood v. Casey decision, eliminating the constitutional right to an abortion and leaving the legality of abortion up to individual states. Advisory Board's Joel Whitaker breaks down what health care providers should think about moving forward.

    Check out our new resource page for post-Roe implications for health care

    Details on the decision

    The decision related to Dobbs v. Jackson Women's Health Organization, a case challenging a Mississippi law banning abortion after 15 weeks.

    Justice Samuel Alito authored the Court's opinion—which resembles a copy of a draft opinion that was leaked back in May—and was joined by Justices Clarence Thomas, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett. Justices Thomas and Kavanaugh each filed concurring opinions, and Chief Justice John Roberts also wrote a separate concurring opinion, agreeing that the Mississippi law should stand but arguing that he would have taken "a more measured course" and not overruled Roe entirely.

    In the opinion, Alito writes that Roe "must be overruled" because the decision was "egregiously wrong," the arguments were "exceptionally weak," and the decision "has had damaging consequences" amounting to an "abuse of judicial authority."

    "The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision, including the one on which the defenders of Roe and Casey now chiefly rely—the Due Process Clause of the Fourteenth Amendment," Alito wrote. "That provision has been held to guarantee some rights that are not mentioned in the Constitution, but any such right must be 'deeply rooted in this Nation's history and tradition' and 'implicit in the concept of ordered liberty.'"

    "It is time to heed the Constitution and return the issue of abortion to the people's elected representatives," Alito added.

    In a dissenting opinion, Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan accused the majority of eliminating precedents that balanced a women's interest and the interest of a state in protecting "potential life."

    "Today, the Court discards that balance," the Justices wrote. "It says that from the very moment of fertilization, a woman has no rights to speak of."

    The majority "does not think there is anything of constitutional significance attached to a woman's control of her body and the path of her life," the Justices added in their dissent. "A State can force her to bring a pregnancy to term, even at the steepest personal and familial costs."

    What's next

    A number of states are poised to enact abortion restrictions or outright bans in response to the Court's decision.

    Some states, including Mississippi, North Carolina, and Wisconsin, have old laws regarding abortion on the books and could attempt to reinstate them, NPR reports.

    Meanwhile, around 15 states have so-called "trigger bans" in place: laws passed in anticipation of the Court's decision overturning Roe.

    According to an analysis by the Guttmacher Institute, South Dakota, Kentucky, and Louisiana have laws in place designed specifically to take effect once Roe was overturned. Idaho, Tennessee, and Texas have laws that are similar but will take effect after 30 days. According to Guttmacher, seven other states with "trigger bans" have laws that would require state officials to take action in order to implement them. (Kendall/Bravin, Wall Street Journal, 6/24; Totenberg/McCammon, NPR, 6/24; Mangan/Breuninger, CNBC, 6/24; Liptak, New York Times, 6/24)

     

    Advisory Board's take

    What Advisory Board researchers are thinking right now

    This morning's Supreme Court ruling on Dobbs v. Jackson Women's Health Organization has triggered a cascade of uncertain consequences for health care leaders and the patients they serve. By shifting abortion care from a matter of constitutional rights to a state-by-state political question, it introduces unprecedented complexity to health care organizations that operate across state lines.

    Health care is diverse, and our Advisory Board experts understand that the downstream effects of this ruling will be complex for different stakeholders and geographies. In our research, we don't presume to provide moral guidance, policy advocacy, or political prognostication. We are focused on providing practical guidance to you as a health care leader, to help your organization understand and adapt to changes in the health care landscape.

    I encourage you to consider two immediate actions, using resources we are making available on a new resource center on post-Roe implications for health care business:

    1. Conduct a quick situational assessment for your organization: What does your workforce need to hear from leaders? How might newly activated state policies impact your business? Do your patients have easy access to authoritative information about changes to care access? This "pulse check" resource arms you with questions to engage colleagues and prioritize your efforts.

    2. Stress-test and maintain internal alignment on business plans for maternal health care: How do the state-level regulatory changes triggered by the Dobbs decision intersect with recent developments in femtech and health equity? Every organization is due for a strategy gut-check on maternal health overall, and this set of ready-to-use slides from our recent Maternal Health Market Scan report can get you off to a fast start on building internal presentation and framing fact-based strategy discussions.

    What can you expect from Advisory Board going forward? In the coming weeks, our research teams will share analysis of likely business impacts for providers, payers, and other health care stakeholders; best practices for supporting and engaging the clinical workforce; and most importantly, a deep dive on potential health outcomes for pregnant people and their families. Our goal is to clarify the most likely scenarios in a moment of heightened uncertainty and point to actions you can take to improve outcomes for your organizations, your people, and your patients.

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