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:

In a unanimous ruling, the New York Court of Appeals held that the New York State Legislature did not alter the substantive pleading requirements of Section 11(b) of the Court of Claims Act (the “Act”) for claims brought against the State of New York (the “State”) pursuant to the New York Child Victims Act (“CVA”).

In Chi Bartram Wright v. State of New York, the plaintiff alleged that between 1986 and 1990, when he was twelve to fifteen years old, he was repeatedly sexually assaulted by various men at a state-owned performance arts facility located in Albany, New York. The complaint filed in the Court of Claims failed to identify any of the men who allegedly assaulted plaintiff, the specific months and dates of the alleged assaults, why plaintiff was in the company of the alleged abusers multiple times over a four year period, or what repeatedly brought plaintiff to the performance arts facility. Instead, the complaint generally alleged that during the alleged time period, plaintiff was assaulted by various State employees and members of the general public while on the state-owned premises. Plaintiff sought over $75 million in damages based on various negligence-based causes of action, including negligent hiring, retention, direction, and supervision.