The US Supreme Court released its opinion in Dobbs v. Jackson Women’s Health on June 24. The decision overturns prior Supreme Court decisions in Roe v. Wade and Planned Parenthood v. Casey, which held that the US Constitution prohibits states from banning abortion or unduly burdening access to abortion services in the initial phases of pregnancy. At least 24 states have laws that can now be enforced barring abortion or imposing conditions beyond those previously permitted by Roe and Casey. The decision may also open the door for further state regulation regarding reproductive rights.
The Dobbs case involved a Mississippi law that prohibits persons from knowingly performing or inducing an abortion if the probable gestational age of a fetus is 15 weeks or greater, except in cases of medical emergency or severe fetal abnormality. This contravened the Supreme Court’s prior ruling in Casey, which affirmed Roe and held that state efforts to ban abortion prior to fetal viability (roughly 24 weeks) violated the US Constitution.
The majority opinion upholds the Mississippi law and explicitly overturns the prior decisions in both Roe and Casey, finding that access to abortion is not a right protected by the Constitution. The decision “return[s] the issue of abortion to the people’s elected representatives” and opens the door to unfettered state regulation of abortion and abortion services.
Employers may struggle to remain compliant with federal and state laws in this environment, which we expect will change rapidly. The most pressing concern is likely whether employers can continue offering coverage of abortions through health benefit plans, including by reimbursing costs incurred when traveling to a jurisdiction to procure an abortion lawful in that jurisdiction.
Justice Alito’s majority decision, which largely tracks the leaked draft, was joined by Justices Thomas, Gorsuch, Kavanaugh, and Barrett. The majority holds that Roe and Casey were wrongly decided: The Constitution does not expressly or implicitly protect the right to choose abortion. As a matter of stare decisis, the majority rejects Roe and Casey because, the majority concludes, those decisions were “egregiously wrong,” are unworkable, have distorted other important but unrelated doctrines, and have not created concrete reliance interests.
With Roe and Casey overruled, the states are now empowered to regulate and restrict access to abortion significantly, if not completely. Laws regulating abortion are entitled to a “strong presumption of validity” and will be upheld unless there is no “rational basis on which the legislature could have thought [the law] would serve legitimate state interests.” Under this easy-to-satisfy standard, the majority upheld Mississippi’s law banning abortions after the probable gestational age of 15 weeks.
Addressing concerns about whether the Dobbs decision might affect the Court’s precedents on other substantive due process rights, like marriage and contraception, the majority distinguished abortion on the ground that abortion “destroys” a “potential life.” In a separate concurrence, Justice Kavanaugh “emphasize[d]” that “[o]verruling Roe does not mean overruling those precedents, and does not threaten or cast doubt on those precedents.” Justice Thomas, however, wrote separately to express his view that “the Due Process Clause does not secure any substantive rights” and to thus urge the Court to “reconsider all of [its] substantive due process precedents, including Griswold [contraception], Lawrence [intimate relationships], and Obergefell [marriage equality].”
Justice Kavanaugh addressed other questions that may arise from the majority’s decision. He explained his view that a state may not bar a resident from traveling to another state to obtain an abortion “based on the constitutional right to interstate travel.” He also opined that the Due Process Clause and Ex Post Facto Clause would prohibit states from retroactively imposing liability or punishment for abortions before today.
Chief Justice Roberts concurred that Roe and Casey’s “viability” test should be rejected, but noted that he would not have overruled Roe and Casey’s core holding that the Constitution protects the right to abortion. Chief Justice Roberts found overruling Roe and Casey to be an unnecessary “jolt” to the legal system, and instead would have replaced the “viability” test with one that ensures women have a reasonable opportunity to exercise the right to abortion.
Justices Breyer, Sotomayor, and Kagan jointly dissented. The dissent sharply criticizes the majority’s originalist approach:
Those responsible for the original Constitution, including the Fourteenth Amendment, did not perceive women as equals, and did not recognize women’s rights. When the majority says that we must read our foundational charter as viewed at the time of ratification (except that we may also check it against the Dark Ages), it consigns women to second-class citizenship.
At least 24 states have laws that criminalize abortion, including 13 states with “trigger laws” that criminalize abortion if Roe is overturned. Most states will be able to enforce these laws immediately. This includes the nine states with trigger laws that take effect once a decision overturning Roe is issued and the four states with laws that contravene Roe and Casey but were never formally enjoined by a court. The remaining four trigger laws take effect 30 days after a decision overturning Roe or upon the fulfillment of an interim condition, such as a state attorney general or other official confirming that Roe was overturned. The seven states with laws subject to active injunctions will need to petition the courts to have those injunctions lifted prior to enforcing those bans.
It is not expected that all these laws will be actively enforced. The current governor of Michigan, for instance, has signaled that she has no intention of enforcing the state’s 1931 law against abortion and led the effort to win an injunction against it prior to the Dobbs decision. The current governors of Wisconsin and North Carolina also appear unlikely to enforce the pre-Roe bans on abortion still on the books in their states.
The precise limitations imposed by the state laws vary. Sixteen of the laws prohibit abortion at any point in a pregnancy with only narrow exceptions. Six of the laws prohibit abortion once a fetal heartbeat is detected, which is roughly at week six of gestational development. Three laws prohibit abortion when the estimated gestational age of the fetus is 15 weeks or greater. Nearly all of the laws make performing an unlawful abortion within the state a crime.
Texas and Oklahoma have also recently enacted laws that permit individuals to file civil actions against entities that perform abortions or “knowingly engage in conduct that aids or abets the performance or inducement of an abortion, including paying for or reimbursing the cost of an abortion through insurance or otherwise.” Both the Texas and Oklahoma laws are being challenged in court.
The Texas and Oklahoma laws are the only ones that explicitly classify employer coverage or reimbursement of abortion services banned in those states through insurance or benefit plans as aiding and abetting unlawful abortion. The remaining laws do not explicitly forbid employers from covering abortion or abortion services through employer insurance coverage. There is some risk, however, that state criminal conspiracy and/or aiding and abetting laws may be cited against companies that cover abortion or abortion services, including receipt of abortion medication, within a particular state.
It is unclear whether the states will apply these laws broadly or narrowly, especially when persons who reside in one of those states seek abortion services outside the state’s borders. This will have particular resonance for employers considering travel and expense reimbursement policies for employees who need to leave a state to obtain abortion services. The State of Texas may argue, for instance, that a company or company benefit plan violates the Texas law if it reimburses a Texas-based employee for an abortion received in a state that permits abortion, or for related travel costs.
The Texas and Oklahoma statutes do not provide a clear answer to that question, nor is it clear whether such a provision would be upheld. The general presumption against the extraterritorial application of state law coupled with constitutional concerns raised by that application counsel against a broad reading of their application. This issue will likely be the subject of continuing litigation and debate.
Employers with employees in states where abortion is illegal may consider different avenues to facilitate abortion access for employees and their dependents. Employers with plans that do not cover abortions may amend their plans to do so. Employers also may expand access to pharmaceutical abortions. However, these benefits may not be available in states that restrict or prohibit abortions.
In response, many employers are considering plan amendments that would cover travel and lodging expenses related to out-of-state abortions. There are several ways to provide these travel and lodging benefits.
Travel and Lodging Benefits Under Existing Group Health Plans
One approach is to add travel and lodging benefits to an employer’s existing group health plan. As a group health plan benefit, the travel and lodging benefits will be subject to ERISA requirements, including Health Insurance Portability and Accountability Act (HIPAA), Affordable Care Act (ACA), and Mental Health Parity Act rules. This approach also may not be available under a fully insured plan in a state that restricts abortion access.
In addition, the travel and lodging benefits would be limited to individuals who have enrolled in the employer’s plan. Employers will need to check with their third-party administrators to confirm whether the administrator is willing and able to oversee these benefits.
Travel and Lodging Benefits Under Health Reimbursement Arrangements
Another option is to reimburse travel and lodging expenses through an integrated health reimbursement arrangement (HRA). An HRA also is subject to ERISA, and an HRA cannot reimburse travel and lodging expenses above the (relatively modest) limits set forth in Section 213 of the Internal Revenue Code.
In addition, an HRA must be integrated with other coverage or qualify as an “Excepted Benefit HRA,” or else the HRA may violate ACA rules that prohibit lifetime and annual dollar limits for certain benefits and require coverage of preventive care without cost sharing.
Travel and Lodging Benefits Under Employee Assistance Programs
A third option is to offer travel and lodging benefits under an employee assistance program (EAP) that is an excepted benefit. Because employers typically provide EAP coverage to all eligible employees without charging a premium, this provides the ability to offer the travel and lodging benefits to all employees, not just those who are enrolled in the employer’s group health plan.
The EAP would be an ERISA plan, but excepted benefits are exempt from ACA requirements. To be an excepted benefit, the EAP (1) cannot provide significant benefits in the nature of medical care or treatment; (2) cannot be coordinated with benefits under another group health plan; (3) cannot charge a premium for participation; and (4) cannot require any cost sharing for offered services.
The first requirement is subjective and requires a facts-and-circumstances analysis. This creates risk for employers because there is no way to know for certain whether a medical benefit is “significant.” The other three requirements are objective, which makes it easier to assess compliance. However, it may be a challenge to find a vendor that can administer travel and lodging benefits provided through an EAP.
Travel and Lodging Benefits as Taxable Reimbursements
A fourth option is to offer a taxable reimbursement for any travel or lodging expense incurred by an employee or, more narrowly, a reimbursement for “wellness” related travel. Under this approach, employers would require receipts for travel and lodging, but would not request substantiation of an abortion or other wellness expense.
This type of arrangement probably would be more costly for an employer because it is a broader travel benefit, but this approach also may protect the employer from civil or criminal liability under state law because the employer will not know whether employees are using the benefit to facilitate abortion access. Employees may be more willing to utilize this benefit if they are fearful of disclosing that they or a covered dependent has had an abortion.
However, this benefit also would not be subject to ERISA, which means the employer cannot argue that ERISA preempts a state law challenge to this benefit.
Many employers are concerned about potential civil or criminal liability for aiding and abetting abortion access. ERISA generally preempts state laws that “relate to” an ERISA plan but does not preempt “generally applicable” state criminal laws. The application of ERISA preemption to state civil laws that restrict abortion is less clear, but we believe ERISA generally will preempt a state law that does not involve an exercise of police power. Also, Justice Kavanaugh’s concurring opinion indicates that in his view, a state may not bar a resident of that state from traveling to another state to obtain an abortion. This suggests that if the Court considered a case challenging a state statute that would prohibit or restrict out-of-state travel to obtain abortion services, there might be five votes to strike down that statute. It is possible that the US Department of Labor will issue guidance clarifying the preemptive effect of ERISA in this area.
Issues in this area are expected to develop rapidly and employers should closely monitor developments.
Governors and state legislatures opposed to abortion will likely move quickly to pass laws regulating access to such medical services if they do not currently have them in place. While most state legislatures are currently out of session, they can be reconvened for special sessions on this topic. We also anticipate that some states will consider more stringent bans on abortion as well as legislation aimed at prohibiting employers from adopting policies that help employees obtain out-of-state abortion services.
States with legislatures that support access to abortion will probably move with similar speed to preserve and protect that access. Proposals floated by state lawmakers include prohibitions on state agencies cooperating with criminal abortion investigations in other states and additional legal and privacy protections for persons traveling to those states to receive abortion services.
Employers face the difficult task of navigating these competing movements. Employers should continue to monitor the situation closely and engage with legal counsel to develop policies that comply with their various legal obligations.
If you have any questions or would like more information on the issues discussed in this LawFlash, please contact any of the following Morgan Lewis lawyers:
Washington, DC
Rosina Barker
Steven P. Johnson
Sharon Perley Masling
Stephanie Schuster
Jonathan Zimmerman
Boston
Lisa H. Barton
Chicago
Saghi Fattahian
Houston
Gregory N. Etzel
Stefanie Moll
Miami
Kimberley E. Lunetta
New York
Martha B. Stolley
Philadelphia
Kristin M. Hadgis
Pittsburgh
John G. Ferreira
Princeton
Emily Cuneo DeSmedt