A growing number of large US companies have said they will cover travel costs for employees who need to leave their home states to perform abortions, but these new policies could expose companies to lawsuits and even possible criminal liability, experts said. legal.
Amazon.com, Apple, Lyft, Microsoft and JPMorgan are among companies that have announced projects to provide these benefits through their health plans, ahead of Friday’s decision by the US Supreme Court. The court overturned the historic Roe v. Wade in 1973, which legalized abortion nationwide.
The ruling, dictated by the court’s conservative majority, upheld a law in the US state of Mississippi that prohibits abortion after 15 weeks. Meanwhile, some Democrat-led states are moving to strengthen access to abortion.
Companies will have to navigate this patchwork of state laws and are likely to draw the ire of anti-abortion groups and Republican-led states if they adopt policies to support employees who want to abort.
State lawmakers in Texas have already threatened legal repercussions for Citigroup and Lyft, which had previously announced travel reimbursement policies. A group of Republican politicians wrote in a letter last month to Lyft CEO Logan Green that Texas “will take swift and decisive action” if the ride-hailing company implements the measure.
COURT LAWSUITS
It’s likely only a matter of time before companies face lawsuits from states or anti-abortion activists alleging abortion-related payments violate state bans, according to Robin Fretwell Wilson, a University of Illinois law professor and expert on health law.
Amazon, Citigroup, Lyft and several other companies that announced refund policies did not respond to requests for comment.
For many large companies that fund their own health plans, federal law governing employee benefits will provide crucial protection in civil claims over reimbursement policies, several lawyers and other legal experts said.
The Erisa (Employee Retirement Income Security Act) of 1974 prohibits states from adopting requirements that “relate to” employer-sponsored health plans. Courts have for decades interpreted this language to bar state laws that dictate what health plans can and cannot cover.
Any company sued over an abortion travel reimbursement demand is likely to cite Erisa as a defense, according to Katy Johnson, senior health policy advisor at the American Benefits Council, a trade group. And this will be a strong argument, she said, particularly for companies with general reimbursement policies for necessary medical travel, rather than those that specifically highlight abortion.
Johnson said reimbursements for other types of health-related travel, such as visits to designated “centers of excellence” hospitals, are already common, although abortion-related policies are still relatively rare.
LIMITS
The argument, however, has its limits. Health plans in which employers purchase coverage through a commercial insurer cover about a third of workers with access to these benefits and are regulated by state law, not Erisa.
Most US small and medium businesses have fully insured plans and cannot argue that Erisa prevents states from limiting abortion coverage.
In addition, Erisa cannot prevent states from enforcing criminal laws, such as those in several states that make it a crime to aid and encourage abortion, so employers who adopt reimbursement policies are vulnerable to such accusations by state and local prosecutors. .
But since most criminal abortion laws have not been enforced in decades, since the Supreme Court’s 1973 ruling, it’s unclear whether officials would attempt to sue companies, according to Danita Merlau, a Chicago attorney who advises companies on benefits issues. .
