Commercial Litigation Update

In the wake of the Dobbs decision, which eliminated the constitutional right to abortion, individual states were left to regulate or ban the procedure. A patchwork of state laws subsequently followed, with some states enacting total bans and others permitting abortion access, with considerable variations in between. In addition to regulating or restricting access to the procedure, certain states have criminalized seeking, providing, and helping others obtain or provide abortion, especially those providing telehealth services, but these actions are legal and protected in New York. New York’s “Shield Law” consists of several statutes, enacted and intended to protect providers and patients offering or seeking abortion in New York against the imposition of criminal and civil liability originating from outside the state. According to the New York State Office of the Attorney General, “[t]he Shield Law broadly prohibits law enforcement and other state officials from cooperating with investigations into reproductive health care (“protected health care”) so long as the care was lawfully provided in New York.”^[1] Moreover, “[w]ith respect to reproductive health care specifically, these protections apply even if the care was provided via telehealth to a patient located out-of-state, so long as the provider was physically present in New York.”^[2]

New York’s Shield Law creates substantive protections for reproductive health care, which can be summarized as follows:

Coming off the decisions in the landmark Dobbs and Bruen cases, the rest of the term might seem anticlimactic. Nevertheless, as the shelf is being cleared of the remaining cases, there are still rulings of significance to come. As the week opened, one of them—a religious freedom case—likely didn't surprise anyone who listened to the oral argument or, indeed, who has been paying attention to the conservative Justices having changed the valences in religious liberty cases. The other two cases decided on the opening day of the week were both criminal cases of limited interest, but important nevertheless.

The Court has started the week with three decisions emphasizing textual readings, two of them unanimous and a third drawing Justice Kagan into the majority with the Court’s six nominal jurisprudential conservatives.

Despite a large list of argued cases pending decision, the Court decides just two of them today—neither of them Dobbs.