Benefits and Compensation, HR Management & Compliance

SCOTUS Abortion Ruling Raises Complex Policy Problems for Employers

A number of high-profile companies are speaking out against the U.S. Supreme Court’s (SCOTUS) decision overruling Roe v. Wade, and they are backing up their criticism by vowing to help employees wishing to travel for legal abortions. But employers taking such action may face tricky legal issues.

In a decision announced June 24, the Court ruled to end the constitutional right to abortion that was put in place by the 1973 Roe decision. In the wake of the Court’s latest action, companies including Starbucks Corp., Uber Technologies Inc., Inc., and others announced they will pay travel expenses for employees who can’t obtain legal abortions in their home states.

“It’s really a who’s who of corporate America who are offering the travel benefits,” Mark I. Schickman of Schickman Law in Berkeley, California, says. He doesn’t see major legal risks for employers offering travel benefits, but companies offering the benefit need to take care in drafting their policies.

Schickman says the companies offering travel benefits are saying they will do so “to the full extent permitted by law.” That wording may hold down legal risks posed by state laws placing strict restrictions on abortion.

Compliance Issues to Consider

Jason P. Lacey, an attorney with Foulston Siefkin LLP in Wichita, Kansas, says employers need to consider a number of legal issues, but the key concerns are:

Will the benefit be offered as part of a traditional health plan or as a stand-alone benefit? If it will be offered as a stand-alone benefit, it likely will be subject to compliance requirements such as COBRA and HIPAA.

What are the tax implications? Some medical-related travel can be provided as a tax-free benefit, but there are limitations. Transportation costs are tax-free only if “primarily for and essential to medical care,” and regulations limit the amount that can be reimbursed tax-free for mileage. Also, there are limits on lodging and companion travel expenses.

Who will administer the travel benefit? Many employers use third-party administrators, some of whom may be reluctant to provide the service if there are questions about their potential legal exposure. An employer may self-administer a travel benefit, but it will need to ensure appropriate policies and procedures are in place to comply with HIPAA.

Legal Risks

Employers choosing to offer benefits for employees seeking abortions need to consider what their state laws allow.

“Some state laws preclude conduct that ‘aids or abets’ an abortion,” Lacey says. “It is not clear whether providing a travel benefit for employees to obtain an abortion would be considered aiding or abetting an abortion. It could depend on the specific language of the law at issue. At a minimum, employers should consider only providing benefits in connection with abortions that are lawfully obtained.”

Some benefit plans are covered by the Employee Retirement Income Security Act (ERISA), and Lacey says it is possible ERISA will preempt some state laws, but there are exceptions and limitations. “ERISA does not preempt state insurance laws or criminal laws, and it only preempts state laws that ‘relate to’ a benefit plan,” he says.

In crafting a policy, employers also need to consider whether a benefit should apply to more than just abortion. Lacey says there are “potential concerns” that offering travel benefits or other additional services relating only to obtaining a type of medical care—such as abortion—and not to obtaining mental health care, such as gender-affirming care, may be inconsistent with the requirements of the Mental Health Parity and Addiction Equity Act, “so careful consideration should be given when setting the scope of the travel benefits,” he adds.

One possibility is to make the travel benefit available for any type of care when the individual must travel more than a specified distance to obtain care because the needed care isn’t otherwise available within that geographic area, Lacey says.

Court’s Action

The decision announced June 24—Dobbs v. Jackson Women’s Health Organization—overturned both the 1973 Roe decision and the 1992 Planned Parenthood v. Casey ruling, which reaffirmed the right to an abortion.

Justice Samuel Alito wrote the majority opinion and was joined by Justices Clarence Thomas, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett. Chief Justice John Roberts did not join the opinion. Instead, he agreed that the Mississippi law at issue in Dobbs should be upheld, but he argued the Court should not have overturned Roe.

Kavanaugh and Thomas both wrote concurring opinions. In his opinion, Kavanaugh said the Court’s ruling “does not outlaw abortion throughout the United States” and “does not threaten or cast doubt” on other decisions such as those ensuring the right to contraception and same-sex marriage. Thomas’ concurring opinion suggested, however, the Court in future cases should reconsider those rulings.

Schickman calls the decision overruling Roe “massively broad,” and adds, “Thomas went out of his way to say there’s more coming after this one.” Schickman says it’s unusual “to see the Court planting a flag in the ground” that way.

Schickman also says the dissent by Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan is unusual because it is “more fiery than one usually sees.”

Tammy Binford writes and edits news alerts and newsletter articles on labor and employment law topics for BLR web and print publications.

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