Firms are helping employers navigate post-Dobbs health benefits and abortion coverage
When the U.S. Supreme Court’s draft opinion of Dobbs v. Jackson Women’s Health Organization was leaked in May, employers jumped to check their existing benefit plans. And they contacted their lawyers.
“It felt like the floodgates opened,” says Sarah Raaii, a partner at McDermott Will & Emery in Chicago. “Employers were reaching out and saying, ‘What type of coverage can I now offer? Do I really need to look at every single state where I have employees?’”
To date, abortion is protected in 23 states and the District of Columbia, according to the Center for Reproductive Rights. Meanwhile, a dozen states have near-total bans on abortion, with 10 states having passed bans on abortion coverage in health plans and 15 having banned coverage on their exchanges, according to the American Civil Liberties Union.
With dozens of state legislatures holding their first sessions of the post-Roe v. Wade era, some firms are proactively counseling clients on the highly complex, politically charged and quickly shifting landscape surrounding employee benefits and abortion laws. In doing so, attorneys have to consider real and hypothetical civil and criminal liabilities.
As it became clear that Roe would fall, firms such as Morgan, Lewis & Bockius and McDermott each pulled together task forces of attorneys from a range of specializations, including health care regulatory compliance, employee benefits, employment, privacy and litigation.
McDermott created a checklist for employers as they develop guides for abortion-related benefits. Items include considerations such as an organization’s indemnification and defense policies for workforce members as well as data storage practices, among others.
Washington, D.C.-based Sharon Perley Masling, a partner and leader of Morgan Lewis’ Reproductive Rights Task Force, is among the lawyers trying to negotiate the jumble of state laws and proposals.
Masling told the ABA Journal in an email that she has found “some companies seeking weekly or monthly updates on the evolving situation, some who needed assistance rewriting benefits plans, some who wanted guidance on whether to make a public stance and others preparing for potential litigation.”
It’s important not only to check benefit compliance, says Chicago-based Morgan Lewis partner and task force member Sage Fattahian, “but to consider some of the potential ‘what ifs.’”
These could range from potential civil to even criminal liability. Oklahoma and Texas, for example, adopted laws allowing civil lawsuits against anyone aiding and abetting an abortion. In Texas, performing or providing means for an abortion is a felony unless the mother’s life is at risk.
Lawyers on notice
Attempting to navigate this shifting legal landscape, some firms and companies see offering financial support for medical travel and lodging benefits as potential legal workarounds for employees in states where abortion is banned.
In his concurring opinion regarding Dobbs, Supreme Court Justice Brett Kavanaugh wrote that states can’t bar their residents from traveling to other states to obtain a legal abortion. Also, the Department of Justice stated in a press release after Dobbs that the Constitution restricts a state’s authority to ban abortions outside of its borders.
At the ABA Midyear Meeting in February, the House of Delegates passed a resolution opposing legislation and regulations that restrict an individual from traveling interstate to access medical care.
While no suits aimed at employee benefits had been filed at press time, a group of Texas legislators and a Trump-era official launched letter-writing campaigns.
In June, Sidley Austin was one of several employers—such as Apple, the Walt Disney Co., Accenture, Airbnb, along with firms McDermott and Morgan Lewis—that quickly announced they will provide abortion-related travel and lodging benefits.
In July, the Texas House of Representatives’ Texas Freedom Caucus wrote to Yvette Ostolazza, Sidley’s management committee chair, putting all lawyers and law firms on notice. The group described planned legislation “that will impose civil and criminal sanctions on law firms that pay for abortion travel.”
“To the extent that Sidley is facilitating abortion performed in violation of [West Texas Civil Statutes] article 4512, it is exposing itself and each of its partners to felony criminal prosecution and disbarment,” the letter states. That law imposes criminal liability on “whoever furnishes the means for procuring an abortion knowing the purpose intended is guilty as an accomplice.”
Though the legislation threatened in the letter had not been introduced at press time, a bill prohibiting tax incentives for companies assisting employees with obtaining abortions had.
Title VII and the ADA
Attorneys counseling companies seeking to support abortion care throughout their locations are tasked with ensuring current benefit plans equitably meet the guidelines of the Civil Rights Act of 1964 and the Americans with Disabilities Act.
Raaii, co-chair of McDermott’s Post-Roe Resource Center, says several clients considering travel benefits received a letter from Sharon Fast Gustafson, former U.S. Equal Employment Opportunity Commission general counsel, like the one she sent in October to the CEO of a large publicly traded client.
That letter states travel benefits may violate Title VII of the Civil Rights Act “if it provides such benefits for employees, spouses or dependents, while not providing equivalent benefits for those who wish to access health care that will help them conceive a child, maintain a pregnancy or care for the health of their unborn children.” Gustafson also cited potential violations of the ADA if the plan did not also cover mental health or other needs.
Gustafson wrote a similar letter to the ABA Journal. (See “Letters From Our Readers,” October-November, page 8.)
“It seemed like a bit of a fishing expedition, frankly, just to see if anyone would respond or anyone would change,” Raaii says. Clients did not change course or respond to the letter, she adds.
EEOC Commissioner Andrea Lucas, however, reportedly filed a commissioner’s charge against at least three unnamed companies with charges believed to echo those spelled out in Gustafson’s letter.
Those letters followed a request by America First Legal Foundation, a conservative legal group, in July to the EEOC for an investigation of Dick’s Sporting Goods for multiple violations of Title VII. The foundation did not respond to the ABA Journal’s request for comment.
Still, broad travel and lodging benefits are the least risky option for employers, Raaii says. Ensuring those policies also cover travel for receiving mental health and substance abuse services within 100 miles of residence could help a company or firm avoid discrimination charges.
Companies’ options are dependent both on where they’re based and how their company-sponsored insurance plans are structured.
Fully insured plans, which are favored by smaller companies, are highly regulated by state laws. A company based in a state where abortion is illegal, such as Texas, cannot amend its fully insured plan to provide abortion care services and is unlikely to offer travel and lodging benefits, according to Fattahian.
In states where abortion coverage is mandated for nearly all private insurers, fully insured companies also can offer travel and lodging benefits for those living in states where abortion is banned. Self-insured plans, often provided by larger companies, are more flexible. Section 514(a) of the Employee Retirement Income Security Act of 1974 allows for the preemption of state laws that prohibit abortion or abortion-related care, so travel and lodging benefits can be expanded to include abortion services for people living in states where it is banned.
ERISA, however, doesn’t preempt criminal laws. In their letter to Sidley, the Texas legislators underscored that abortion is a criminal felony offense in their state unless the mother’s life is in danger. That would leave plans open to potential criminal liability, Fattahian says.
The National Right to Life Committee drafted model legislation for consideration by state legislatures. Under the aiding and abetting provision of its law, if “somebody pays for someone to travel to have an illegal abortion, that would be illegal,” says James Bopp Jr., NRLC’s general counsel. The group was more focused on clinic personnel driving a minor across state lines when writing the bill, he says.
Several reproductive rights groups in Texas filed a class action suit in August against Texas Attorney General Ken Paxton and district attorneys in the U.S. District Court for the Western District of Texas, Austin Division, aiming to head off possible prosecutions of those helping Texans gain access to legal abortions in other states, including providing financial support.
E. Pierce Blue, a leader of Morgan Lewis’ Reproductive Rights Task Force in D.C., said in an email to the ABA Journal that a ruling supporting the group’s requests “would give employers extra assurance that Texas’ abortion laws could not be used to prosecute them for covering lawful out-of-state abortions under their benefit plans or offering travel and lodging support for employees who have to travel to receive reproductive health care.”
Is providing abortion-related benefits worth taking the risk? For many companies, those benefits play into their increased focus on retention, diversity, equity and inclusion.
“It’s a tightrope for sure,” Raaii says. “It’s hard to know what truly is a risk and what is saber-rattling.”
This story was originally published in the April-May 2023 issue of the ABA Journal under the headline: “Plan Puzzle: Firms help employers navigate post-Dobbs health benefits.”