Employment Law Report

What Employers Need to Know before Offering Employee Abortion Benefits

By: Alexa J. Elder

On June 24, 2022, the United States Supreme Court held that there was no constitutional right to an abortion, overturning nearly 50 years of precedent established in Roe v. Wade[1] and Planned Parenthood v. Casey[2]. Under the consequential decision, Dobbs v. Jackson Women’s Health Organization[3], the power to regulate, limit or restrict abortion is now left to each individual state to decide. 

In anticipation of the ruling, thirteen states had preemptive “trigger” laws in place, which were designed to ban or severely limit abortion access immediately or soon after any reversal of Roe and/or Casey. Many of these laws have already gone into effect. Altogether, at least twenty-six states appear poised to completely ban or severely restrict abortion access in wake of the Dobbs’ decision. Roughly 40 million women of reproductive age are expected to lose access to legal abortion care in their home states.

Although Dobbs allows states to prohibit abortion services within their borders, the ruling does not restrict women living in these states from traveling to a state where abortion remains legal to receive the procedure.  Justice Brett Kavanagh seemingly confirms this in his concurring opinion, stating that, in his view, a state’s attempt to ban abortion related travel would violate the constitutional right to interstate travel.

But while traveling out of state for an abortion remains a legal option under Dobbs, women living in states that prohibit abortion will now have to travel an average of 552 miles (round trip) to access legal abortion services; women in some geographic regions will need to travel closer to 800 miles before reaching the nearest legal abortion clinic.[4] Due to a number of logistical and financial factors, traveling across state lines will be an extraordinarily difficult task for some women and impossible for others. 

In response to these concerns, some companies have vowed to implement abortion related benefits which would make traveling easier for employees living in states where abortion became illegal. According to recent reports, at least 114 companies, including several big law firms and prominent businesses such as Disney, JP Morgan Chase, Lyft, Tesla, Nike, Apple and Google, have announced plans to reimburse travel costs for employees who travel across state lines to obtain legal abortion care.

However, while these companies scramble to create and implement these benefits, there are important factors and risks employers should consider in deciding whether and how to provide benefits relating to abortion care.  

ERISA

While the range of potential abortion benefits may vary between companies, many employers have announced plans to offer the proposed benefit through the company’s health plan.  Employers who implement abortion benefits through the company’s health plan may be protected under the Employee Retirement Income Security Act of 1874 (ERISA), a federal law which preempts state law to the extent the purported state law “relates to” an employee self-insured health benefit plan.  Employers relying on ERISA for protection, however, should be aware that ERISA has a number of exceptions to which the preemption rules do not apply.

Notably, ERISA only preempts state laws that relate to self-insured health plans. Companies with fully-insured health plans are not protected under ERISA and as a result will have less coverage options. Similarly, companies that offer abortion travel benefits outsideof their company’s health plan cannot rely on the ERISA’s preemption rules for protection.

Another growing concern for employers is that ERISA does not supersede “generally applicable” state criminal laws.  While some legal experts believe that abortion benefits offered via a company’s health plan would not constitute a violation of a “generally applicable” state criminal law, whether or not such ERISA preemption arguments will prevail over a state anti-abortion law is not a clear-cut issue as courts have not yet considered this question.

State Laws

While ERISA is likely to offer some protection to companies that provide the benefits through their self-insured health plans, this is still a novel issue yet to be decided. Thus, it is critical that employers review and understand applicable state laws to determine the risks associated with any potential abortion related benefit. 

Abortion laws vary significantly between states and cannot simply be boiled down to states that ban abortion and states that don’t. Some states, for example, not only prohibit abortion but additionally allow private citizens to file lawsuits against anyone who “aids or abets” a woman seeking an abortion.  Other states make it a crime to aid and abet an abortion.

Moreover, companies should prepare for a rapidly shifting legal landscape over the next year and anticipate a number of changes coming through new case law and state legislation which may directly target companies offering abortion related assistance. Some lawmakers are already working towards legislation that would explicitly prohibit companies from offering abortion travel reimbursement benefits. And a group of legislators in Texas recently indicated interest in seeking legislation that would make it a felony for employers to pay for or reimburse employees for abortion related expenses, regardless of whether the abortion occurs in a state where the procedure is legal. 

Some employers have already been threatened with legal sanctions for offering abortion related benefits. In May of this year, the CEO of Lyft was informed that the state of Texas was planning to take “swift action” against the company for its plan to help women travel to a state where abortion remained legal for the procedure.  And more recently, partners at Sidley Austin LLP, one of the largest law firms in the country, were threatened by Texas lawmakers with criminal prosecution for their role in allegedly facilitating illegal abortions in violation of a pre-Roe Texas law which makes it a crime to “furnish the means to procure an elective abortion.” While many experts believe that these types of prosecution efforts are unlikely to withstand ERISA and other legal challenges, the possibility will still require close monitoring of state laws.

Title VII

In addition to keeping up with rapidly evolving state laws, employers must also make sure that any abortion benefit complies with Title VII of the Civil Rights Act of 1964, as amended by the Pregnancy Discrimination Act of 1978 (PDA).  Under Title VII, women are protected from discrimination and harassment in the workplace based on pregnancy, child-birth or other related medical conditions, including abortion.  The U.S. Equal Employment Opportunity Commission (EEOC) has expressly found that discrimination or harassment against an employee for having, or not having, an abortion is unlawful under Title VII.

Just last week, America First Legal (AFL), a group of former Trump administration members, asked the EEOC to open a civil-rights investigation into Dick’s Sporting Goods, alleging that the company’s abortion related benefits plan unlawfully discriminated against employees who decided not to terminate their pregnancies by not offering them an equivalent benefit in violation of Title VII.  Whether or not there is any legal basis for AFL’s claim is yet to be determined. 

Title VII also prohibits discrimination in the workplace on the basis of religion. Because the topic of abortion is often closely tied to religious beliefs, it is pertinent that employers carefully consider how they respond to employees who express their viewpoints on abortion and related policies to avoid a religious discrimination lawsuit.  Employers that do not offer abortion related benefits aren’t necessarily free from risk on this issue either.  Recently, a Jewish congregation filed suit alleging that a restrictive state abortion law violated the group’s free exercise of religion because “[u]nder traditional Jewish law, life begins at birth and if a fetus poses a threat to the health or emotional well-being of its mother, at any stage of gestation up until birth, Jewish law not only entitles but requires the mother to abort the pregnancy and protect herself.” [5]  Some experts predict that employers on both sides of the abortion issue could find themselves in the middle of similar religious discrimination suits.

The National Labor Relations Act

Employers must also remember that under Section 7 of the National Labor Relations Act (NLRA), private-sector employees have a right to discuss the terms and conditions of their employment with their colleagues and co-workers.  Accordingly, an employer’s attempt to restrict or suppress employee conversations regarding the company’s abortion-related policies or benefits (or lack thereof) could constitute a violation of the NLRA.  

Other Considerations

Although many prominent companies have been vocal about their plans to make abortion care more accessible for their employees, a recent survey found that 90% of U.S. companies have thus far remained silent on the issue.[6] However, some economists have warned that employers looking to avoid the topic altogether may want to rethink their decision. Beyond the moral debate, research suggests that employers doing business in states with restrictive abortion laws are more likely to face concrete recruitment and retention difficulties,[7] and some experts predict that labor shortages could worsen in states where employees are now forced to grapple with unintended pregnancies.[8] Offering abortion related benefits may be an effective way for employers to combat the potential negative economic implications of restrictive state abortion laws, and may explain why a number companies are proceeding with their plans to help employees access abortion care despite the legal risks.

Conclusion

The Supreme Court’s Dobbs ruling has undoubtedly created a number of significant and complex economic and legal concerns for employers, many of which remain uncertain or are still developing.  Employers are encouraged to consult with legal counsel to remain current on the rapidly evolving legal developments in this area and to work with counsel in designing and drafting abortion related policies to minimize their risk.


[1] 410 U.S. 113 (1973).

[2] 505 U.S. 833(1992).

[3] 142 S. Ct. 2228 (2022).

[4] Nearest US Abortion Clinics: How Far Americans Have to Travel for Legal Abortions (bloomberg.com)

[5] Generation to Generation Inc. et al. v. The State of Florida et al., case number 2022-CA-980, in the Circuit Court of the Second Judicial Circuit In and For Leon County, Florida.

[6] 1 in 10 companies took a public stance on abortion after Dobbs, survey finds (axios.com)

[7] PerryUndem Tara Health Report

[8] The Turnaway Study | ANSIRH

Alexa J. Elder
Alexa Elder is a member of the firm’s Litigation & Dispute Resolution team. She assists with the representation of a broad range of clients in a variety of cases, including appellate practice, constitutional law and commercial litigation. Read More