Proponents of abortion rights are protesting before the U.S. Supreme Court a day after the United States Supreme Court ruled in the Dobbs abortion case against the Women’s Health Organization, overturning Rowe’s remarkable abortion decision against Wade, in Washington, DC, June 25, 2022. REUTERS / Elizabeth Franz
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June 26 (Reuters) – A growing number of large US companies have said they will cover the travel costs of employees who have to leave their home states to have abortions, but these new policies could expose businesses to litigation and even potential criminal liability, legal experts said.
Amazon.com Inc (AMZN.O), Apple Inc (AAPL.O), Lyft Inc (LYFT.O), Microsoft Corp (MSFT.O) and JPMorgan Chase & Co (JPM.N) were among the companies that announced plans to provide these benefits through their health insurance plans pending a ruling by the U.S. Supreme Court on Friday overturning the remarkable 1973 Roe v. Wade ruling that legalized abortion across the country. Read more
Within an hour of the ruling, Conde Nast CEO Roger Lynch sent a note to staff announcing a policy to reimburse travel expenses and calling the court ruling a “crushing blow to reproductive rights.” Walt Disney Co. (DIS.N) revealed a similar policy on Friday, telling employees it acknowledged the impact of the abortion decision, but remained committed to providing full access to quality health care, a spokesman said. Read more
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Companies, including health insurance company Cigna Corp. (CI.N), Paypal Holdings Inc (PYPL.O), Alaska Airlines Inc. [RIC:RIC:ALKAIR.UL] and Dick’s Sporting Goods Inc (DKS.N) also announced recovery policies on Friday.
The abortion restrictions, which already existed in books in 13 states, went into effect as a result of Friday’s decision, and at least a dozen other Republican-led states are expected to ban abortions.
The court ruling, led by its conservative majority, upheld a Mississippi law banning abortions after 15 weeks. Meanwhile, some Democratic-led countries are seeking to increase access to abortion.
Companies will have to navigate this patch of state law and are likely to attract the wrath of anti-abortion groups and Republican-led states if they adopt policies that support abortion workers.
Texas state lawmakers have already threatened Citigroup Inc (CN) and Lyft, which had previously announced travel reimbursement policies, with legal consequences. A group of Republican lawmakers in a letter last month to Lyft CEO Logan Green said Texas would “take swift and decisive action” if the transportation company implements the policy.
Lawmakers have also outlined a series of abortion proposals, including a bill that would ban companies from doing business in Texas if they pay state residents to have abortions elsewhere.
PRESENT COURT DEBUTS
It is probably only a matter of time before companies face lawsuits from states or abortion activists who claim that abortion-related payments violate government bans on facilitating or supporting abortion, according to Robin Fretwell Wilson, a law professor at the University. of Illinois and a health law expert.
“If you can judge me as a person for carrying your daughter across the state, you can judge Amazon for paying for it,” Wilson said.
Amazon, Citigroup, Lyft, Conde Nast and several other companies that announced cost recovery policies did not respond to requests for comment.
For many large companies that fund their own health plans, federal employee benefit law will provide crucial civil litigation coverage for their reimbursement policies, several lawyers and other legal experts said.
The Employee Retirement Income Security Act of 1974 (ERISA) prohibits states from adopting requirements that are “related” to employer-sponsored health plans. Courts have been interpreting this language for decades to ban state laws that dictate what health plans can and cannot cover.
ERISA regulates benefit plans that are funded directly by employers, known as self-employed plans. In 2021, 64% of workers in the United States with employer-sponsored health insurance were covered by self-insurance plans, according to the Kaiser Family Foundation.
Any company sued for a claim for reimbursement for abortion is likely to cite ERISA as protection, according to Katie Johnson, a senior health policy adviser at the American Benefits Council, a trade group. And that would be a strong argument, she said, especially for companies with common policies to reimburse the cost of necessary medical travel, not for those who perform abortions.
Johnson said reimbursement for other types of medical travel, such as visits to hospitals designated as “centers of excellence”, is now common, although abortion policies are still relatively rare.
“While this may seem new, it’s not in the general sense, and the law already tells us how to deal with it,” Johnson said.
LIMITS
The argument has its limits. Fully insured health plans, in which employers buy coverage through a commercial insurer, cover about a third of workers with insurance and are regulated by state law, not ERISA.
Most small and medium-sized businesses in the United States have fully insured plans and cannot argue that ERISA prevents states from limiting abortion coverage.
And ERISA cannot prevent states from enforcing criminal laws, such as those in several countries that commit the crime of aiding and abetting abortion, so that employers who adopt reimbursement policies are vulnerable to criminal charges by state and local prosecutors. .
But since most criminal abortion laws haven’t been enforced in decades since Rowe’s decision, it’s unclear whether employees will try to prosecute companies, according to Danita Merlau, a Chicago-based lawyer who advises companies on compensation issues.
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Report by Daniel Wisner in Albany, New York, Edited by Alexia Garamfalvi and Grant McCool
Our standards: Thomson Reuters’ principles of trust.
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