Inside the legal risks of offering travel reimbursement for reproductive care

Some states are threatening retaliation against employers, but some legal experts say employers may have legal cover.
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· 4 min read

Since Roe v. Wade was overturned on June 24, some employers have offered to support employees in the more than two dozen states expected to have partial or near-full bans on abortion. And while a growing number of employers have spoken out about expanding employee access to reproductive care, lawyers say there’s a long road ahead.

While employers including JPMorgan, Sony, and Estée Lauder are already offering an added abortion-related travel-expense reimbursement to their existing health-insurance policies, Bloomberg reported that “the approach could open businesses to criticism or retribution from abortion opponents in states that adopt restrictions.” Katy Johnson, senior counsel of health policy at the American Benefits Council, told HR Brew this could potentially hamper how employers approach the issue.

Fear factor. State and congressional GOP legislators have already fired warning shots. In May, 14 state legislators in Texas sent a letter to Lyft promising to introduce bills that would seek to prevent it and other companies from doing business in Texas should they offer to reimburse travel expenses for employees to receive out-of-state abortions, according to the Texas Tribune. And Texas’s recent abortion law gives private citizens the right to sue anyone who helps a pregnant person obtain an abortion. According to some legal experts, this could include employers. As University of Illinois law professor Robin Fretwell Wilson explained to Reuters, “If you can sue me as a person for carrying your daughter across state lines, you can sue Amazon for paying for it.”

Johnson said she suspects state legislative threats could potentially impact employers’ benefits decisions, adding that the employers she’s spoken to are already considering the legal implications. “It is going to impact the decision-making for some employers due to the amount of uncertainty in the law and the potential criminal consequences for violating the law.”

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Legal cover. Despite the potential risks associated with offering to reimburse employees who have to travel for abortion care, Johnson said employers may have some legal protections. For example, Johnson explained that the Employee Retirement Income Security Act (ERISA) essentially says that, “the states don’t have the ability, generally speaking, to tell them which benefits that they can and can’t offer.” She went on to say that, “there aren’t other federal laws that tell a large self-insured employer-sponsored plan what they have to do can or can’t do with regard to abortion.”

She also noted that companies with more than 15 employees could also have legal protections under the Pregnancy Discrimination Act, the only federal law that speaks to abortion access. The act, she said, “generally would require employers to cover abortion if the life of the mother is endangered…otherwise, employers have a large amount of discretion as to whether they cover abortion or not and whether they would provide a travel benefit or not.”

What’s next? While some believe these laws could give employers a modicum of preliminary legal protection, Johnson said the future is unclear. “Right now, employers are working very hard to understand the legal landscape. What's difficult is that we won't really know all of the parameters of the legal landscape for months, or maybe years. I think many of these issues are going to have to play out through litigation.”—KP

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