Top Ten 2026: Looking Ahead on Reproductive Health Care

Based on AHLA's annual Health Law Connections article, this special ten-part series brings together thought leaders from across the health law field to discuss the top ten issues of 2026. In the eighth episode, Sheela Ranganathan, Adjunct Professor, Georgetown University School of Health, speaks with Jody Joiner, Member, Weaver Johnston & Nelson PLLC, and Amanda Smith, Counsel, K&L Gates LLP, about the latest trends and developments in reproductive health care. They discuss EMTALA, shield laws, medication abortion, and emerging ethical and legal challenges.

Watch this episode: https://www.youtube.com/watch?v=CnV7bUfTp4U

Read AHLA's Top Ten 2026 article: https://www.americanhealthlaw.org/content-library/connections-magazine/article/a879dda5-35f9-46fb-ad45-1b0799343d74/Health-Law-Forecast-2026

Access all episodes in AHLA's Top Ten 2026 podcast series: https://www.americanhealthlaw.org/education-events/speaking-of-health-law-podcasts/top-ten-issues-in-health-law-podcast-series

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Transcript

SPEAKER_00 0:02

Welcome to AHLA's annual Top 10 series, where we discuss the major health law trends and developments of 2026. Learn more about AHLA at americanhealthlaw.org.

SPEAKER_03 0:16

Hello, and welcome to the AHLA Top 10 Podcast Series for 2026. My name is Sheila Ringanathan, and I'm legal counsel at a healthcare nonprofit as well as an adjunct professor at Georgetown University School of Health. Today's episode focuses on key developments in reproductive health law as we head into 2026, including Mtala, state abortion restrictions, shield laws, and emerging ethical and legal challenges. I'm joined today by Jodi Joyner and Amanda Smith, who article uh who authored an article called Looking Ahead on Reproductive Health Care as part of HLA's top 10 series. Jodi and Amanda, before we dig in, I'd love to start by having each of you introduce yourselves. Could you tell us a little bit about your background, your practice, and your areas of expertise?

SPEAKER_02 1:03

Hi, I'm Jodi Joyner, and I've been practicing health law for over 20 years, mostly in-house, but also in law firm context. I also have a little sidekig at as adjunct faculty at UT Dallas. And I have an interest in reproductive health law and have done some talks and articles on the subject through AHLA, which is why we're here today. Thanks, Amanda.

SPEAKER_01 1:35

Hi, I'm Amanda Smith. I'm counsel at KNL Gates out of our Washington, D.C. office. Um, and that I've been at KL Gates for about a year and a half. And prior to joining the team at KNL, I spent the previous 11 years in-house at a hospital association, focusing primarily on 340B with both legal and lobbying aspects to that. Um, and also have uh experience with the United States Senate Finance Committee, healthcare subcommittee, where I clerked after law school. So, you know, obviously out of DC, both a legal and political background.

SPEAKER_03 2:10

Great, thanks. Okay, so let's start with MTALA. So, for a bit of context, MTALA is the federal law that requires Medicare participating hospitals with emergency departments to provide an appropriate medical screening and stabilizing treatment to anyone who presents with an emergency medical condition, regardless of ability to pay. In the post-DOVS environment, we've seen some friction between MTALA's obligation to provide stabilizing care, including abortion care in certain emergency circumstances and state abortion restrictions. There was a lawsuit in Idaho that went up to the Supreme Court and then got returned to the lower courts for further proceedings. Amanda, can you tell me a little bit more about Mtala-related litigation and what the current status of that litigation is right now?

SPEAKER_01 3:01

Yeah, absolutely. So as you mentioned, umTala requires necessary stabilizing treatment. And this could include or could be interpreted to include emergency abortion care if the health or the life of the pregnant person is at risk. And so in the post-ops world, you see many states implemented abortion restrictions. And those run the gamut, they vary based on state. And a lot of those state laws do have exceptions regarding when an abortion could be legally permissible. And so some of those are very narrow exceptions and may not include exceptions that allow abortion care under the state law if the health or life of the pregnant person, or sorry, if the health or life of the pregnant person is at risk, or if the health of the pregnant person is at risk, which is a key distinction in that where do you draw the line of whether or not one is the health at risk or two is the life at risk. So you see providers put into situations where it could be really challenging to determine if an exception to abortion care exists when the abortion restrictions exist. And the consequences for getting that wrong can be really severe. There could be criminal obligal exposure there, civil, as well as you could have administrative issues should the state think that you made the wrong call and your license is all of a sudden at risk. And so again, Umtala does require stabilizing care, and state laws may have exceptions, but it can be really challenging to figure out when that applies. And so you mentioned this Idaho litigation, and that was initially, you know, Dobbs obviously was handed down during the previous administration, which took a different position in the current administration. And the federal government initially was taking the position that some of these state laws contradict Imtala and are therefore preempted if they don't have an exception that allows for the health or life of the mother. The current administration obviously takes a different position than previous. And so that litigation, the federal government's no longer pursuing it, but a hospital in or hospital system in Idaho pursued challenge to Idaho's abortion restrictions under the theory that it's impossible for the hospital to comply with both Mtala and the state law. So as you mentioned, that's ongoing. It's still at the district court level as of recording, and that there is currently a briefing schedule that is extending into late July 2026. So it could be some time, several months, before the district court is done with briefing and able to make a decision on whether or not they agree with the hospital system, that Idaho's law doesn't allow the hospital to comply with both Antala and Idaho law, or whether the district court ends up agreeing with the state. Obviously, it's a very well-followed lawsuit. It's expected to continue to be monitored by various stakeholders as this proceeds, not only through the district court, but regardless of who wins at the district court, will almost certainly be appealed. So, you know, in the meantime, again, you have providers in the position of determining how to comply with both Imtala and the state law. And then, you know, that's in states with abortion restrictions. Um, but another issue that could come up everywhere is, you know, there's extreme consequences that if you are found in violation of state abortion restrictions, but there's also exposure if you're found to not be complying with Mtala. So the federal government may not take enforcement action related to failure to comply with umtala under this theory that uh emergency abortion care may be required for the health or life of the pregnant person. But you could see state enforcement and you could also see individual patients who don't receive care that they think they should have received based on a more conservative approach to when umtala maybe requires some level of abortion care or emergency abortion care. And so you could see claims from patients continue to come up, um, just in that, again, claims that they maybe didn't receive the care that they think they should they were entitled to under federal law.

SPEAKER_03 7:35

Okay, thanks. So looking ahead, Amanda, do you have any predictions for how the Mtala landscape might shift over the course of 2026?

SPEAKER_01 7:46

I think that um, you know, obviously don't have a crystal ball, but depending on how the district court and then when it makes it up to the circuit court, um who they agree with, um, whether this ends up going to the Supreme Court. Because again, um, after Dobbs, we've had you know a change in the legal landscape. So what that legal framework looks like in interpreting these dueling obligations um just hasn't been developed. And so this is the first opportunity to really develop um, you know, again, a legal framework that providers can then feel more confident that they're balancing those obligations correctly. So I think really watching um, you know, what is seen as the premier litigation to begin that initial step, I think is is going to be a big piece of that story. Um then additionally, if you see states or maybe even the federal government put out additional information on compliance with either the state's exceptions, as we've seen some states over the last couple of years modify their laws as they see some issues come up, or whether the federal government puts out more information on whether how Mtala and state abortion restrictions can interact with each other.

SPEAKER_03 8:58

Thanks, Amanda. Um, I know we have a lot to cover and not a lot of time, so I'm gonna shift gears a little bit. Um passed shield laws over the last several years to protect patients and providers involved in reproductive health care. Um, Jodi, before we get into recent developments, um could you explain at a high level what shield laws are and what they're designed to do?

SPEAKER_02 9:21

Sure. Shield laws are enacted in states to prect patients, providers, and others within their state from enforcement of out-of-state laws, such as criminal, civil, and administrative laws in those other states, as long as the patients' providers and and others in the originating state follow their own laws. So that's generally how they work. So for example, in our article, we talked about a New York physician who was providing telehealth abortion care in other states. She was complying with New York laws. And the other states had abortion prohibitions. And they in one state she got a civil judgment against her, and in another state, she was indicted based on violations of those states, alleged violations of those states' laws. And they tried, those states tried to enforce those laws in New York against that position. So in one case, they tried to enforce the judgment, a hundred thousand dollar judgment against her. The other state, Louisiana, tried to extradite her based on the indictment in Louisiana. In the one case, the civil judgment, there was a clerk in New York that refused to enforce that. And the Attorney General of New York refused to extradite the doctor to Louisiana. So that's the general gist of how those work.

SPEAKER_03 11:04

Thanks. Um, so I know you touched on the litigation around shield laws, but can you tell me a little bit more about the litigation? Um, you know, what are the implications? What are you seeing?

SPEAKER_02 11:16

So the implications, for example, for this doctor in New York, she is she's doing this in a lot of states, as is another provider who has recently, very recently, a couple of weeks ago, been sued in by Texas. She's a nurse practitioner who's doing very similar work as the New York physician. She's providing telehealth abortion services and mailing medication abortion abortion medication to other states, to patients in other states. And so she is now being sued by Texas saying that she violated the laws of Texas, first because she's not a physician and Texas requires physicians only to provide abortion care, but also because she's violating the abortion laws there as well, just in general, because it's medication abortion. But what's interesting in that case is that they are alleging that she is not only violating the Texas laws against abortion, but that she is violating her home state of Delaware's laws. And as I said at the at the outset, part of the SHIELD laws is that you have to, in order to take advantage of the SHIELD laws and to have them protect you as a provider, you have to follow the laws of your own state. You what you're doing has to be legal in your home state. And Texas is alleging that she violated her own state's laws. And that because that allegation is in the complaint, that could be a potential issue for that provider. So that's one implication in the SHIELD law lawsuits is that if you aren't careful and you violate your own state's laws, that could that could be an issue in terms of whether or not you can take advantage of the shield laws. Another potential implication is that you have to, with the SHIELD laws, you have to rely on individual people within the government to enforce the shield laws in your state. For example, that civil judgment, there was a a clerk in the government that had to actually refuse to enforce that civil judgment. And then the attorney general had to refuse to extradite. So what happens when the politics change? Or what happens if when somebody else gets elected? Or what happens if the judgment is being enforced in another area of the state that maybe has a different political leaning than one part of the state. And somebody is not as likely to support the shield laws or the enforcement of the shield laws. So I think that's something to consider just because the state has a shield law that doesn't necessarily guarantee protection. And I think one thing that some people might not consider is that if the providers are providing care in all of these states in a bunch of different states, if there's an indictment out there they want and multiple indictments potentially, that could limit where they travel going forward. And I think that's something that providers need to consider. I mean, if they have family in other states and they want to travel there, they have to be careful about that. Or if they want to travel somewhere else and they have to make a stop somewhere, that's a potential issue. So I think those are concerns.

SPEAKER_03 14:53

Thanks, Jody. Um, one other topic that has been litigated across the courts is medication abortion. Um, Amanda, could you tell me a bit about what medication abortion has looked like and what legal updates you're keeping an eye on?

SPEAKER_01 15:10

Yeah, absolutely. So medication abortion combined with telehealth is one reason the shield laws can have some teeth. Um, that as Jody mentioned, right, somebody can provide telehealth services that result in a medication abortion prescription legal under state law that then the you know shield law attaches to that. And so what um some people in states with abortion restrictions have viewed this um as hindering their abortion restrictions because there's more access to people who want to have an abortion via medication abortion. Um and so there were changes to um, you know, medication abortion does have a revenge program attached to it. So that's risk evaluation and mitigation strategy, basically, that was revised a couple of years ago. And so Louisiana has actually filed lawsuit in federal courts against those revenge changes. Um, that, you know, once those changes were put into place, um, in-person dispensing requirements were no longer required, as well as some other changes that allowed telehealth prescriptions and basically nationwide mailing of abortion medication, including into states with abortion restrictions. And so Louisiana has, again, filed litigation to challenge that change to REMS that has allowed more telehealth or mailed abortion medication. Um and that interestingly, though the current administration is much more aligned with Louisiana than opposed to it, um the federal government has itself looked to reevaluate its REMS program for abortion medication. Um, and so um, at least in you know early court filings, does not seem supportive of the Louisiana litigation at this time, as it's looking to potentially assert its own authority. So there is lawsuits related to this. Um, it's an area that is getting a lot of attention and that I think will probably continue to get attention in 2026 because again, this is something that um states with abortion restrictions see as an avenue, um, a workaround to those restrictions, um, and that either changes to the REMs through federal authority or litigation like what Louisiana has has filed is likely to continue to pick up in 2026.

SPEAKER_03 17:35

Um Jodi, in your article, you also discussed a case involving a pregnant woman who was declared brain dead and kept on artificial support until her fetus was viable. Um, could you give us a brief overview of that situation and what happened in the case?

SPEAKER_02 17:52

Sure. So in that case, the patient came into the hospital and was declared brain dead. She was a young woman who was just around two months pregnant at the time. And her family did not want her to be kept on support while her body essentially was used as an incubator for the baby. The hospital ultimately decided to keep her on support until the baby was determined to be viable so that they could then deliver the baby. This became a big issue in the news, and there was a lot of conflict over it, and that was that was the situation there.

SPEAKER_03 18:47

Thanks. What kinds of legal and ethical issues can cases like this raise?

SPEAKER_02 18:52

So this this issue is obviously a very emotional issue, and it can have legal, ethical, religious, all sorts of issues. But at the same time, you know, the besides the ethical and religious issues and you know the emotional issues involved, I think from a legal perspective, there are certain things that that the hospitals need to be prepared for in handling these issues. Usually this situation will depend heavily on state law. But the types of issues that the hospital will have to deal with would probably involve, first of all, looking at state law, like the how abortion is defined, whether or not the state law recognizes fatal personhood, what laws say in the state about providing support to deceased patients, whether there's anything directly about that. Most states aren't going to have laws specific to this particular issue. After some of this publicity, they may start looking at providing laws related to that. Also, the hospitals want going to want to perhaps look at whether the laws involve whether the state has a bounty law. Because the bounty laws are the ones that requ that allow citizens of the state to report violations of abortion laws. So if, for example, a hospital were to perform an abortion that somebody deemed illegal, then anyone at the hospital who was aware of that could potentially report the hospital or any of the people involved. So that sort of law can discourage people from being involved in any kind of decision making in a situation like this. So that could hinder the hospital's ability to discuss and potentially make decisions in a case like this. So certainly being aware of whether there's a bounty law and if there is, you know, carefully making decisions about who's involved in the decisions. That's another issue that the hospital would have to deal with. Um definitely the hospital is going to have to deal with whether or not anybody involved in the decision making or in the treatment of that patient has any conscientious objections and handling replacement of any providers that do have those. That's another issue that would have to be addressed. Um potentially. Looking at whether or not the patient had any advanced directives. You know, we know that advanced directives are not effective after the death of the patient. But we also know that if a patient has written an advanced directive that specifically addresses this exact issue, like if somebody saw this in the news and thought, okay, I am going to change my advanced directive and I'm going to add something in there about this specific thing because I want to address it if this happens to me. So if they have an advanced directive that has that information in it, then that information could potentially be used as evidence of the patient's wishes in the discussions of this issue, if if it were relevant. So those are those are some of the issues that a hospital might look at in terms of uh discussing and making a making a determination in a case like this. So ultimately, in the going back to the case that was publicized, it was ultimately decided to keep the patient on support until the baby was viable and then the baby was born. So that that was a obviously very difficult case. And you know, it's it's this kind of thing is going to happen. It probably has happened in other times that did not were not publicized. And so hospitals have got to be prepared to address these issues. And these are these are the sorts of issues that they're gonna need to consider.

SPEAKER_03 23:37

Yeah, and it just goes to show how um increasingly complex these issues are becoming in the reproductive health landscape that we have today. Absolutely. Jodi and Amanda, thank you so much for joining me today. Um, and to our listeners, thanks so much for tuning in. If you'd like to uh learn more about the topics that we covered today, please feel free to refer back to the article that Jodi and Amanda wrote. Thank you all. Have a great day.

SPEAKER_00 24:09

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