Practicing Post-Roe: Emergency Contraception

The U.S. Supreme Court’s decision to overturn Roe v. Wade raises significant regulatory, compliance, and practical issues for healthcare providers, health systems, and those entities that insure them. As state laws are enacted, challenged, and modified over the coming months, the implications for ProAssurance’s insureds will undoubtably change.

As it stands now, the laws of each state offer a patchwork of different abortion prerequisites, exceptions, restrictions, and penalties for illegal abortions. And there are severe penalties, both civil and criminal, directed primarily at the healthcare providers performing abortions.

We are committed to keeping you informed and protecting your practice of medicine.

When discussing abortion services—medical or surgical in nature—attention must be paid to the basic premise that medical professional liability insurers cannot shield physicians from liability for illegal acts. Therefore, knowing the permissible scope of abortion services in each state is paramount and will require the involvement of a dedicated attorney from that state. Decisions made by healthcare providers in contravention of state law may indeed preclude coverage under their professional liability policy.

This Information Center will evolve, with the goal of highlighting many of the pressing issues affecting providers who now practice in a post-Roe world.

There is much debate in the public realm about whether contraceptives – in particular emergency contraceptives such as Plan B (levonorgestrel) and Ella (ulipristal acetate) – will be considered abortion-inducing medications that violate state laws banning abortion. Current thinking is that ProAssurance insureds should lawfully be able to prescribe and dispense these emergency contraceptives in most states.

Emergency contraceptive drugs, by and large, prevent rather than terminate a pregnancy. Plan B works by preventing the release of an egg from the ovary or preventing fertilization of the egg by sperm. Ella works by preventing or delaying the release of an egg from the ovary. Both Plan B and Ella may also work by changing the lining of the uterus to prevent development of a pregnancy. It is unlikely that these mechanisms of “prevention” would run afoul of state abortion statutes, given that most current statutes define abortion as “termination” of an existing pregnancy. In Alabama, for instance, the Human Life Protection Act makes it unlawful to “use or [prescribe] any instrument, medicine, drug, or any other substance or device with the intent to terminate the pregnancy of a woman known to be pregnant with knowledge that the termination by those means will with reasonable likelihood cause the death of the unborn child.” Ala. Code § 26-23H-3.

However, each state law will define the term “abortion” differently. Moreover, every drug acts differently and may have potential abortive effects if taken improperly, at the wrong time, or in the wrong setting. Therefore, care must be taken to review both the prescribing information for the specific drug being considered and the applicable state law before making a determination in any given situation.

Additionally, many of the statutes banning abortions require “intent” on the part of the provider to terminate the pregnancy. With emergency contraceptives, there generally is no intent to terminate an existing pregnancy – the intent is to prevent a potential pregnancy. This lack of intent should provide further reassurance as to the lawfulness of prescribing emergency contraceptives such as Plan B and Ella.

Presently, there is very little in the way of official legal rulings on how each state’s law will address emergency contraceptives. Without the benefit of judicial guidance, providers should continue to rely on their training, education, and experience with respect to prescribing emergency contraceptives. If a provider is concerned about the legality of prescribing a specific emergency contraceptive, the following practice pointers could be communicated:

• Review the drug’s package insert. What does it say about Indications, Usage, and Precautions? Plan B’s package insert, for instance, states that it is “indicated for prevention of pregnancy following unprotected intercourse or a known or suspected contraceptive failure.” It further states that Plan B “is not effective in terminating an existing pregnancy.” However, some emergency contraceptive drugs can also be used to terminate an existing pregnancy. If the drug labeling is unclear or explicitly acknowledges the drug can terminate an existing pregnancy, providers in states that ban abortions should consult with legal counsel before prescribing that drug as an emergency contraceptive.
• Document the intent and the purpose of treatment. In addition to normal documentation of the risks of treatment and the provider’s medical decision-making, a specific entry in the record explaining the provider’s intent is recommended. An entry in the record that the drug was prescribed to prevent a potential pregnancy from occurring will be useful if the prescription is ever questioned.
• Is the drug one that should be taken within a certain time period following intercourse? If so, the provider should document his/her conversations with the patient about when they had intercourse and their instructions for the timing of treatment. Some drugs may have the potential to terminate an existing pregnancy if taken outside the recommended time window. If there is potential for termination of a pregnancy based on when the treatment is given, the provider should counsel the patient about this risk, document the conversation, and document their intent and instructions to the patient to take the drug at the proper time.
• Is the drug being prescribed for an indication other than pregnancy prevention? Some emergency contraceptives also have non-contraceptive uses. For instance, Ella can also be used to treat uterine fibroids. In situations where a provider is prescribing an emergency contraceptive for a non-contraceptive reason, special care in documenting the prescription should be exercised. The record should reflect specifically why the drug is being prescribed, what medical condition warranted the use of the drug, and that extensive discussions with the patient were held regarding the potential contraceptive effect of the drug.

This essay was provided to ProAssurance by the Starnes Davis Florie LLP law firm.

Published 7/13/2022