Erin Sutton, Associate in the Health Care & Life Sciences practice, in the firm’s Chicago office, was quoted in the Bloomberg Law Daily Labor Report, in “SCOTUS Mifepristone Ruling Leaves Employers in Coverage Quandary,” by Lauren Clason. (Read the full version – subscription required.)
Following is an excerpt:
Employers, health plans, and medical providers still face uncertainty over compliance and coverage of abortion drugs even after the US Supreme Court’s recent dismissal of a lawsuit challenging mifepristone’s approval temporarily resolved questions around patient access.
The high court’s ruling is only the latest iteration of a decades-long fight over abortion access—a fight that is still ongoing. Wide-ranging state laws and the potential for another challenge to the drug’s approval continue to pose a confusing web of regulations for clinicians and companies, attorneys say. …
The Supreme Court on June 13 shot down the challenge to mifepristone’s FDA approval and the Biden administration’s 2021 elimination of a requirement that patients must receive the pill in person. But the court’s unanimous decision only ruled on the legal standing of the anti-abortion doctors and medical groups that sued, not the merits of the case. …
Navigating State Law
The uncertain outlook leaves access questions in limbo, as employers, health plans, medical providers, and pharmacies decide whether to offer the drug in states that have tightened abortion restrictions. …
Companies have been in a state of “active monitoring” of tighter state abortion laws in the wake of the 2022 decision in Dobbs v. Jackson Women’s Health Organization, said Erin Sutton, an associate with Epstein Becker & Green P.C.
“The big push after Dobbs was just trying to figure out what does everything even mean? Which ones are likely to be enforced?” she said. “And two years later, now we have a better understanding of how states are viewing their laws, even though we haven’t seen much enforcement action. But we have gained a better understanding of which laws states seem to be considering their biggest weapon.”
State laws clamping down on abortion are increasingly creative, Sutton said, citing a recent Louisiana law that places mifepristone and the accompanying abortion drug misoprostol on the state’s controlled substance list. The move could aid the state in pursuing anyone dispensing the drug to individuals without a prescription.
