On June 24, 2022, the Supreme Court ruled in Dobbs v Jackson Women’s Health Organization (Dobbs)1 and overturned Roe v Wade and Planned Parenthood v Casey, which recognized a federal constitutional right to end a pregnancy up to the point of viability. This decision opened the door for states to enforce pre-Roe bans on abortion or to pass new legislation restricting or banning abortion.
The Dobbs ruling does not announce a constitutional prohibition on abortion, although some “friend of the court” briefs filed in the case called for such a prohibition. Rather, the Supreme Court’s decision shifted the law from a uniform, national approach under which abortion was a protected constitutional right into a patchwork of 50 different state-level policies.
Some states have codified similar abortion rights to those that existed under Roe v Wade and Planned Parenthood v Casey, meaning that not much will change in terms of in-state abortion rights.2 However, many other states previously adopted legislation that limits reproductive decision-making much more extensively than would have been permitted before Dobbs. In these states, medical professionals are already facing challenges in providing treatments that present risks of legal penalties under these state laws. For these and other reasons, the American Medical Association3 and many other medical professional societies such as ASCO4 have issued statements criticizing the Dobbs decision.
Abortion Prohibitions and Their Effects on Medical Practice
A recent perspective in TheNew England Journal of Medicine described how Texas’ abortion ban has interfered with medically indicated care during pregnancy.5 One respondent observed that “their hospital no longer offers treatment for ectopic pregnancies implanted in cesarean scars, despite strong recommendations from the Society for Maternal-Fetal Medicine that these life-threatening pregnancies be definitively managed with surgical or medical treatment.”5 The perspective also reports cases in which “treating clinicians—believing, on the basis of their own or their hospital’s interpretation of the law, that they could not provide early intervention—sent patients home only to see them return with signs of sepsis.”
“Polling indicates strong support among Americans for the view that decisions about whether to continue or end a pregnancy should be made by patients and physicians, rather than by judges or politicians.”— Govind Persad, JD, PhD
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Similar limitations on treatment will likely affect oncology practices in states that ban abortion when they attempt to treat patients of reproductive age or who are already pregnant. For instance, a recent news article explained that certain cancers typically treated using pelvic radiation cannot be effectively treated during pregnancy because the radiation interferes with fetal development.6 This presents a choice between terminating a pregnancy to treat more quickly or delaying a needed treatment to continue a pregnancy. However, in states where terminating a pregnancy is legally prohibited, one reasonable option will be taken off the table, at least if the patient and provider intend to comply with the law.
These sorts of situations have already arisen abroad in countries with restrictive laws that parallel many of the state laws that have gone into effect after Dobbs. In 2012, a pregnant patient with leukemia in the Dominican Republic was denied early treatment for almost 3 weeks while courts debated whether it was legal to provide her the treatment, which would have likely terminated her pregnancy.7 She died shortly afterward of leukemia.
States that restrict abortion typically provide exceptions for situations in which the patient’s life is at risk. However, even when abortion improves a patient’s prospect of survival, these laws still make physicians’ decision-making murky. In some situations, either terminating a pregnancy to begin cancer treatment or delaying a cancer treatment intervention to complete a pregnancy is a reasonable option consistent with the standard of care. In other situations, treatment has a benefit in terms of extended survival but is unlikely to be curative. Because of the lack of case law or other guidance clearly interpreting “life of the mother” exceptions to abortion bans—combined with the severe legal penalties in many states for performing an abortion outside the exception—many clinicians or hospital systems will simply be unwilling to perform an abortion, even when it reduces a patient’s odds of death.
What Can Cancer Clinicians Do After Dobbs?
Most importantly, clinicians can work to support state-level laws that allow medical decisions during pregnancy to proceed based on shared decision-making within the physician-patient relationship, without fear of legal reprisal or governmental intervention if a recommended treatment causes abortion. These laws already exist in many states and have been proposed after Dobbs in others. Of note, polling indicates strong support among Americans for the view that decisions about whether to continue or end a pregnancy should be made by patients and physicians, rather than by judges or politicians.8
When existing laws limit clinicians’ capacity to implement certain medical decisions, clinicians should obtain relevant information and counsel patients about how the law limits their practice. For instance, many clinicians practice in locations that border multiple states or have clinical practices in which they see patients who may travel from out of state. Clinicians should be clear upfront with patients about the way in which state legislation and/or fears of legal exposure may restrict their capacity to implement treatment decisions they and their patients believe are best. This information may lead patients who are or may become pregnant to seek cancer care in states where the operative laws are less restrictive.
“Trainees who are specializing in specific conditions, such as gynecologic oncology, may elect to avoid residencies and other training opportunities in states that may subject their medical practice to legal penalties.”— Govind Persad, JD, PhD
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Additionally, clinicians should also keep an eye on potential federal legislation that may limit reproductive decision-making, parallel to the state-level abortion bans being adopted in many states after Dobbs. Some legislators have already indicated an interest in passing such legislation at the federal level, which would amount to a nationwide abortion prohibition. Conversely, clinicians should also keep an eye out for federal legislation or regulatory action that may broaden the scope of reproductive decision-making by preempting state abortion bans. For instance, there has been discussion about the U.S. Food and Drug Administration announcing rules that preempt state-level efforts to restrict the prescription of medications that may cause an abortion. In addition, the Department of Health and Human Services has maintained that the federal Emergency Medical Treatment & Labor Act preempts state abortion bans in emergency scenarios.9
The Effect of Dobbs on Oncology Trainees and Staff
Clinicians and practices should also be aware of the effect of Dobbs and state laws restricting abortion access on medical trainees and staff. For instance, trainees who are specializing in specific conditions, such as gynecologic oncology, may elect to avoid residencies and other training opportunities in states that may subject their medical practice to legal penalties. This could lead to shortages of specialists in specific areas within these states or patients crossing state lines to obtain needed treatments.
Additionally, several large employers have announced they will cover the cost of travel for employees who need to go out of one state for reproductive health procedures that are prohibited in that state. In response, some states have threatened to punish these employers. Oncology practices will need to determine how to support trainees and staff in these situations.
DISCLOSURE: Dr. Persad has received grant funding from the Greenwall Foundation and personal fees from the World Health Organization and WCG IRB.
1. Supreme Court of the United States: Dobbs v. Jackson Women’s Health Organization, 142 S. Ct. 2228 (2022). Available at https://www.supremecourt.gov/opinions/21pdf/19-1392_6j37.pdf. Accessed July 29, 2022.
2. Kaiser Family Foundation: Abortion in the U.S. Dashboard. Available at https://www.kff.org/womens-health-policy/dashboard/abortion-in-the-u-s-dashboard/. Accessed July 29, 2022.
3. Resneck Jr J, American Medical Association: Dobbs ruling is an assault on reproductive health, safe medical practice. Available at https://www.ama-assn.org/about/leadership/dobbs-ruling-assault-reproductive-health-safe-medical-practice. Accessed July 29, 2022.
4. ASCO: ASCO statement on Supreme Court Decision in Dobbs v. Jackson Women’s Health. Available at https://www.asco.org/news-initiatives/policy-news-analysis/asco-statement-supreme-court-decision-dobbs-v-jackson-womens. Accessed July 29, 2022.
6. Langreth R, Swetlitz I: Abortion Bans Will Impact Doctors’ Treatment of Cancer, Miscarriage. Bloomberg. June 24, 2022. Available at https://www.bloomberg.com/news/articles/2022-06-24/overturning-roe-can-impact-therapy-for-cancer-miscarriage. Accessed July 29, 2022.
7. Knudsen KE: Cancer patients and their families will feel the impact of SCOTUS abortion ruling. The Cancer Letter. July 1, 2022. Available at https://cancerletter.com/guest-editorial/20220701_3./ Accessed July 29, 2022.
8. Navigator Research: Protecting Abortion Rights: A Guide for Advocates. July 8, 2022. Available at https://navigatorresearch.org/wp-content/uploads/2022/07/Navigator-Update-07.08.2022.pdf#page=3. Accessed July 29, 2022.
9. Department of Health & Human Services: Center for Clinical Standards and Quality: Memorandum on Reinforcement of EMTALA obligations specific to patients who are pregnant or are experiencing pregnancy loss. July 11, 2022. Available at https://www.cms.gov/files/document/qso-22-22-hospitals.pdf. Accessed July 29, 2022.
Dr. Persad is Assistant Professor at the University of Denver Sturm College of Law.
Editor’s Note: This commentary is meant to provide general information about legal topics, not legal advice. The law is complex, varying from state to state, and each factual situation is different. Readers are advised to seek advice from their own attorney.
Disclaimer: This commentary represents the views of the author and may not necessarily reflect the views of ASCO or The ASCO Post.