In the wake of the Supreme Court’s decision to
Since the decision on June 24, major corporations including the Walt Disney Company, Meta (formerly Facebook), Netflix, Microsoft and a myriad of others announced they would enact policies covering
“There are arguments that if your plan covers abortion or abortion-related travel expenses, that amounts to civil or criminal liability in the state that prohibits abortion,” says Amy Sheridan, employee tax benefits partner at Sullivan & Worcester, a Boston-based law firm. “I would anticipate that we're going to see lawsuits around these issues.”
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Much of the blowback expected by this decision is currently unclear, Sheridan says, leaving employers frustrated and often uncertain as to the legal risk they’re opening themselves up to. While they feel pressure to do right by their employees, employers need to carefully weigh the risks of
“Each employer will have a different level of factors that they're considering. Some will take that risk because they’re evaluating the business conduct they have in these states. Others will keep their head down and let the legal processes play out before they feel comfortable,” Sheridan says. “It’s a question of how much you’re going to stick your neck out of the foxhole.”
Sheridan does anticipate that states will start to respond aggressively to employers who offer abortion coverage and travel benefits to employees in states where abortion is illegal. Already, the state of Texas
However, the warning may be an ominous signal of what Texas and many other states will pursue now that Roe v. Wade is overturned, Sheridan says. While states’ current plans are unclear, the next few months will be imperative for seeing which direction they will go in.
“Texas has signaled that it intends to go after employers that cover abortions, either by passing new state laws that prohibit doing business in the state if your plan covers abortions, or by using their existing aiding and abetting laws to go after things like travel policies,” Sheridan says. “We'll hear in the next few months about states deciding to go after certain employers, so we can flesh out which states will be aggressive and which ones will hold back a little bit.”
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Despite the risks, many employers have been driven to provide these benefits by a competitive labor market and a workforce that demands social consciousness from their top leaders. A 2021 survey by Gartner found that three-quarters of employees expect their organization to take a stance on
Fifty-one percent of Americans say that brands should speak out about abortion access, according to a May survey by Morning Consult and Politico. The rift deepens across party lines, however: 76% of Democrats support companies voicing their opinion on this issue, compared to 28% of Republicans. Of those who were against overturning Roe v. Wade, 71% wanted companies to speak out about abortion access.
“I think employers do not like to be in the middle of a political minefield. This has sort of forced employers into making political decisions that they would rather not make,” Sheridan says. “They’d like to be able to do what they think is in their best business interest.”
For many, offering travel benefits and abortion care access will benefit their employees — and as such, their business — even if they face legal risks. The most effective way to do so is to offer these benefits through the organization’s group health plan, which may already cover abortion-related care and travel expenses for medical treatment. By adding benefits through the plan, employers can ensure their
“If it's part of the group health plan, the health plan is being administered by a third party. You get the employer out of the middle of trying to document what the travel was for,” Sheridan says. “When travel policies are under a group health plan, it’s more clearly related to medical expenses and will be protected under ERISA preemption principles from state laws that may try to attack a travel policy.”
As employers wade through the next several months and even years of legislation regarding restricted abortion access, they’ll find themselves running into a wall when it comes to finding clarity on these issues, Sheridan warns. But doing their due diligence can protect their business — and their employees, as the future of these restrictions plays out.
“Employers want to be able to offer the benefits that they think their employee base needs, and most importantly, they want to offer it on a consistent basis across all employee groups. I have been getting calls from companies saying they want to put these travel benefits in place, but you need to think through what this might mean for your business,” Sheridan says. “It's not clear cut as to whether you support an employee with access to an abortion or not. It’s more complicated than that.”
