Introduction
Employee benefit plans
Labour and employment
Immigration
Comment
The Supreme Court held in Dobbs v Jackson Women's Health Organization that the Constitution does not confer a right to abortion, overruling long-standing precedent in Roe v Wade and Planned Parenthood of Southeastern Pennsylvania v Casey. Since the Dobbs decision, trigger laws in approximately 13 states have banned or will shortly ban abortions, and another 13 states are expected to follow suit. While trigger laws are being challenged in court, there is no question that many states will successfully ban, or severely curtail, abortions within their borders. Moreover, a number of those states would impose criminal penalties on:
- abortion providers;
- pregnant people; and/or
- individuals or entities that "aid and abet" abortions.
The Dobbs decision and states' efforts to ban, curtail and/or criminalise abortions have created multiple legal issues that affect individuals and employers. This article provides an overview of the developing legal issues.
Title VII of the Civil Rights Act of 1964, as amended by the Pregnancy Discrimination Act (PDA), does not require employer group health plans to provide coverage for abortions unless carrying the pregnancy to term endangers the pregnant individual's life, but plans must provide coverage for medical complications that arise from an abortion (even if the abortion itself was not covered by the plan). Title VII does not prohibit employer group health plans from providing abortion services coverage, and many employer group health plans do provide such coverage.
Has the Dobbs decision changed that and may an employer still provide coverage for abortion services, such as under its group health plan?
This depends on a number of factors with respect to employer group health plan coverage for abortion services, including whether the plan:
- is subject to the Employee Retirement Income Security Act of 1974, as amended;
- is fully insured or self-insured (self-funded), given that insurers of fully insured plans are subject to state insurance laws;
- provides coverage to individuals who are residents of states that allow or restrict/ban abortions.
Some employers are offering travel assistance, such as:
- broad-based travel benefits under the employer's group health (medical) plan for all types of medical care covered by the plan (including abortions) when a local network provider is unavailable; and
- travel benefits specifically for pregnant individuals residing in states that ban or restrict abortions who travel to receive abortion services in states where abortions are legal. These travel benefits might be provided:
- under the employer's group health (medical) plan;
- under a separate employer plan, such as an employee assistance program, health reimbursement account or other arrangement; or
- as taxable cash reimbursements.
With respect to subsidising out-of-state travel for abortion services, employers must now consider the possibility that one or more states will assert that providing travel benefits violates state criminal laws for aiding and abetting a pregnant individual obtaining an abortion in another state.
In addition to evaluating how to navigate the complicated benefits issues discussed above, employers must continue to comply with anti-discrimination and leave laws that protect pregnant individuals. Title VII, as amended by the PDA, prohibits adverse employment actions based on "pregnancy, childbirth, or related medical conditions". The Equal Employment Opportunity Commission takes the position that employers may not discriminate against employees on the basis of an employee's decision to have an abortion. A number of states have parallel anti-discrimination requirements. In addition, multiple federal courts, including the US courts of appeal for the Third Circuit and the Sixth Circuit, have held that an employee's decision to have an abortion (or contemplation thereof) is protected by Title VII. Moreover, the federal Family and Medical Leave Act and some state leave laws afford employees leave for serious health conditions, including pregnancy-related conditions. Those laws may be implicated when an employee requests time off to travel out of state for an abortion, particularly where the employee is seeking an abortion due to the risk to the employee's health. Employers also need to be mindful that suppressing employees' speech on issues regarding abortion, including leave and benefit eligibility, may risk violating section 7 of the National Labor Relations Act or state whistleblower laws.
Employers should also watch for state laws that impose criminal penalties on residents who receive abortion services (whether in-state or in a place where abortion is legal). If non-US citizen employees receive abortion services, such state laws could potentially jeopardise the employees' immigration status, and correspondingly their authorisation to work in the United States. Any such laws may deter non-US citizens from seeking employment in these states, particularly when the employment requires a long-term contract or commitment or a lengthy green card sponsorship process. Questions further arise as to how the decision will affect a non-US health care professional who provides abortion services and whether their immigration status could be impacted.
The Dobbs decision has significant legal and operational implications for businesses and individuals on multiple levels, many of which remain uncertain or are still developing. For this reason, it is important to move deliberately and consult with counsel before taking any steps in response to the ruling.
For further information on this topic please contact Catherine T Barbieri or Pamela A Thein at Fox Rothschild LLP by telephone (+1 215 299 2839 or +1 612-600-5495) or email ([email protected] or [email protected]). The Fox Rothschild LLP website can be accessed at www.foxrothschild.com.