Hospitals, medical practices, insurance companies, and other business organizations rely on in-house counsel to provide timely legal advice in regard to the lawful provision of abortion services—i.e., compliant with state and federal law. As long as Roe v. Wade was good law, counsel’s role in providing such legal advice was relatively straightforward. Naturally, counsel’s advice should focus on established law, until such case law is overruled. Of course, there was always the risk that the law (as established by the courts) might change, but that risk is always there, and that risk (ie, the materialization of new or unexpected legal developments) applies to every area of substantive law. Generally, absent good reason to believe that established law would change, counsel was entitled to provide legal advice relying on Roe (and its “progeny”), subject to the caveat that all legal advice is subject to change in light of new legal developments.
Usually a “new” legal development takes the form of one case overruling another case. The new case puts counsel on notice that one’s clients will be subject to a new legal rule—possibly involving civil or criminal liability. And counsel’s role is to explain the new legal landscape to one’s client and to help the client negotiate it. The leak of the draft Supreme Court opinion in Dobbs v. Jackson Women’s Health Organization did not overrule Roe. But counsel cannot blind him/herself to what the whole world now knows—that there is a substantial likelihood that Roe will be overturned.
Should that new legal landscape emerge, should Roe be overturned, what will happen? The Supreme Court’s Roe decision did not erase or repeal state statutes restricting the provision of abortion services. Rather Roe’s effect was akin to an injunction which prohibited the enforcement of those state statutes. Should Dobbs (when announced) overrule Roe, then those statutes will spring back to life. Prosecutors will have the power to enforce them. And if all or some types of abortion become criminalized, then so too will all sorts of inchoate abortion-related crimes—conspiracy, attempt, solicitation, and state law analogues of the federal Racketeer Influenced and Corrupt Organizations Act.
More importantly, counsel should also put their clients on notice in regard to the risk of retrospective liability for acts committed while Roe was still in effect. The period of time we are now in may be such a period, particularly as the Dobbs leak has warned one-and-all of likely legal change.
One might think that if an activity was legal when done, then those activities cannot be made subject to sanctions after-the-fact. That is certainly my intuition. But it is just an intuition. Ex Poste Facto Clause protections do not extend to cases involving civil damages. Instead, Ex Post Facto Clause protections extend to statutes imposing (or expanding) criminal liability after the would-be defendant had engaged in the contested activity. But that is not the factual pattern here—here, the contested activity came after the state enacted the statute restricting the provision of abortion services. It is also possible that Due Process Clause protections might insulate a defendant from liability where that party relied on a judicial decision. Certainly, the named parties to those famous Supreme Court cases can so rely. It is not clear that strangers to those cases can claim a similar reliance interest. More importantly, there is no Supreme Court opinion squarely holding that due process rights apply to this unique constellation of facts. See Richard H. Fallon, Jr., ‘If Roe were Overruled: Abortion and the Constitution in a Post-Roe World,’ 51 St. Louis U. L.J. 611 (2007); William Michael Treanor & Gene B. Sperling, ‘Prospective Overruling and the Revival of “Unconstitutional” Statutes,’ 93 Colum. L. Rev. 1902 (1993); see also Jonathan F. Mitchell, ‘The Writ-of-Erasure Fallacy,’ 104 Va. L. Rev. 933 (2018).
In these circumstances, counsel should forewarn clients that their continuing to provide all or some abortion services going forward might lead to liability or, more likely, additional liability—civil and/or criminal—in states that have enacted statutes restricting the provision of abortion services. Indeed, a client’s going forward during this intermediate period, as if nothing has changed, where the client is now on reasonable notice that the law is likely to change, might very well mark the client with a red flag before the prosecutorial bull. Such clients who go about their affairs absent a careful review and absent documented efforts to comply with the law might very well find themselves to be more likely the target of state prosecution (and actions for damages) than others who have modified their behavior in light of new information. Cf. Letters from Briscoe Cain, Member of the Texas House of Representatives, to Abortion Services Providers (Mar. 18, 2021), <https://www.scribd.com/document/565501744/Briscoe-Cain-Abortion-Fund-Letters-Press-Release>.
Seth Barrett Tillman, ‘In-House Counsel’s Duty to Provide Timely Legal Advice after the Leak of the draft Supreme Court opinion in Dobbs v. Jackson Women’s Health Organization,’ New Reform Club (May 4, 2022, 11:54 AM), <https://reformclub.blogspot.com/2022/05/in-house-counsels-duty-to-provide.html>;