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June 24, 2022
Today, the United States Supreme Court issued a historic opinion overturning Roe v. Wade and the constitutional right to abortion in Dobbs et al. v. Jackson Women’s Health Organization et al., which upheld a Mississippi law barring abortions after 15 weeks.
Given existing and proposed legislation, this sea change and the resulting patchwork of restrictions across the country will have implications, not only for employers that directly provide abortion services, but also for employers that offer employee benefits relating to abortion services. Relevant benefits could include group health insurance plans or paid time off for medical procedures and recovery. Additionally, with discrepancies among state laws, some employers provide travel and lodging benefits for employees traveling out of state for abortion services.
Such abortion-related benefits to employees could expose employers to civil or criminal liability. In states where abortion is or will be criminalized, liability could arise for employers under a theory of conspiracy to commit a crime. Similarly, Texas and Oklahoma have expanded civil liability for aiding and abetting abortion. Exposure to liability could extend to assisting employees with travel from jurisdictions prohibiting abortion to jurisdictions permitting abortion.
With regard to applicable insurance and benefits, the Employee Retirement Income Security Act of 1974 (ERISA) provides some insulation against state law to the extent employers act in furtherance of administering their benefits. However, ERISA has an exception for state criminal laws, which bears scrutinizing.
Employers will need to monitor laws in each state in which they operate, as well as federal law.