Roe v. Wade: A Firm Management Perspective

Following the Supreme Court ruling on Dobbs v. Jackson Women’s Health Org., overturning Roe v. Wade, there have been a flurry of news reports on the impacts for those seeking reproductive care in States where abortion has been severely limited or criminalized.  There have also been reports of employers providing new benefits to their employees to help ease the burden some States are placing on their citizens.  If you are an upper-level manager in any business, you may be wondering how this affects your employees and your business.  As The Noble Law’s Firm Administrator, I had many questions and decided to talk to our attorneys to get some answers.  Unfortunately, Dobbs so thoroughly upset established law and health care policy that it has spawned numerous new legal questions where previously the law was clear.  I am sharing in hopes of raising awareness with my fellow professionals.  May the force be with us, I think we are going to need it. 

The Pregnancy Discrimination Act (PDA) prohibits employers from firing employees solely based on the pregnancy status of women.  In States where abortion has been criminalized, this protection may be undermined.  It is more than likely that employers will assert that the termination of an unwanted pregnancy is a criminal act, and therefore a legitimate basis for termination of employment.   Criminal prosecutions for abortion could also prevent individuals from securing gainful future employment and certainly lends support to “Ban the Box”.  State courts will also have to rule on whether obtaining an abortion constitutes “moral turpitude” as defined in employment contracts, as most “moral turpitude” clauses define the term to include criminal activity.  It is also likely that employers will attempt to abuse the discovery process to seek medical information regarding whether a woman has had an abortion to pursue an “after-acquired evidence” defense in wrongful termination cases.

While some companies are offering new benefits to their employees for abortion care, there are many laws and policies that will affect companies differently.  If you are a small business, you may be enrolled in a The Affordable Care Act (ACA)  health plan.  Other health care plans (particularly for mid-sized and large employers) are covered by The Employee Retirement Income Security Act of 1974 (ERISA). Many employers that offer ERISA-governed plans pay for insurance coverage that is governed by forms approved by State Departments of Insurance.  Undoubtedly, States that have outlawed abortion will condition approval of policies and coverage forms on compliance with those States’ laws.  This will undoubtedly spawn litigation regarding whether the plans have properly implemented ERISA to ensure equivalent coverage to all eligible employees.  Self-Insured employers, however, could be caught in the middle between State and federal laws.  Courts will have to resolve the question of whether companies that offer abortion coverage and travel costs to residents of anti-abortion States can be held criminally liable for “aiding and abetting” a crime.

Another benefit that raises thorny legal questions is the Employee Assistance Program (EAP).  EAP offers employees counseling, access to mental health resources, and assistance and support during trying situations.   Currently, the Health Insurance Portability and Accountability Act of 1996 (HIPAA) requires that health care providers maintain the confidentiality of patient medical records.  However, State laws and ethical rules governing providers in some States make providers “mandatory reporters” of certain types of criminal conduct, such as child abuse.  Since the Dobbs ruling, the following open questions will have to be resolved by courts: (1) If HIPAA confidentiality obligations are in conflict with a State “mandatory reporting” law, which law controls? (2) If the provider is located in a State where abortion is legal but is providing telehealth services to a patient in a State where abortion is criminalized, is the provider still obligated to make a report?  (3) Can the remote provider located in a State where abortion is legal provide information regarding how to access abortion care without being capable of prosecution as an accessory or “aiding and abetting” a crime?  Relatedly, States’ varying abortion laws will also raise new questions about interstate extradition and the Constitutional right to travel between States.  If a California resident provides assistance to a woman in Texas who is seeking an abortion, can Texas attempt to extradite that person to Texas to face criminal charges?

These questions only become more difficult when one considers that health care plans often cover dependents, as well as the employee.  What if the person accessing abortion services is a minor child of the employee?  What if it is the spouse or mother of an employee?  If States decide to require parental or spousal notice or consent to an abortion procedure, the courts will also have to decide what duties health care plans and employers have to facilitate or ensure that notice is provided.

We have had a few weeks to grasp the court’s ruling and how it affects each of us, but we are just beginning to unravel what this means to companies.  The subsequent lawsuits will take years to play out, and they will leave employers flying blindly for some time.  As an Employment Law Firm with offices in both liberal and conservative states, The Noble Law will certainly be following along closely.

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