The U.S. Supreme Court’s opinion in Dobbs v. Jackson Women’s Health Organization, No. 19-1392 (June 24, 2022), overruling Roe v. Wade, raised more questions than answers for U.S. employers. As a result of Dobbs, abortion is no longer a constitutionally protected right in the United States. As such, each state is left to determine how to legislate with regard to abortion.

The result of Dobbs is that the legality of abortion will depend on where you live. For example, in Michigan, there is currently still a right to an abortion. However, Republicans who control the state legislature have sought to enforce a 1931 ban that would make it a felony for anyone to perform an abortion in the state.

In other states, like Texas and Oklahoma, abortion providers are subject to suits from private individuals if abortions are performed after the sixth week of pregnancy. The Texas law authorizes any person to sue, for an award of $10,000 as well as costs and attorneys’ fees, anyone who performs, induces, or assists an abortion as well as anyone who “knowingly engage[s] 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.”

Employers that sponsor healthcare plans which cover abortion or abortion-related services and/or want to institute travel benefits for employees who want to travel to a state for a legal abortion must therefore proceed with caution. Providing this care or benefits could now lead to potential civil liability in states like Texas or Oklahoma and criminal liability elsewhere.

One statutory defense for employers who are in this situation is the preemption section of the Employee Retirement Income Security Act of 1974 (“ERISA”). ERISA’s preemption provision protects insurers and employers from having to follow each and every state law and local regulation on benefits by stating that the Federal law “preempts” these various provisions. Therefore, employers that have plans covered by ERISA could argue that such claims are preempted by federal law and that any civil suits under state laws should be barred. However, protection from criminal liability is still debatable. Preemption may still be a possible defense, but there is a carve-out from ERISA’s preemption section for “generally applicable” criminal laws. The issue is whether a state law that criminalizes abortion is generally applicable. This remains to be litigated.

Another wrinkle with regard to providing abortion-related benefits is that ERISA and state insurance codes do not apply to self-funded plans, which are not considered insurance policies. As such, sponsors of self-insured plans can cover abortion-related healthcare expenses with less fear of prosecution under state abortion laws.

In short, employers need to analyze all these issues when determining whether or not to provide abortion or abortion-related services in their healthcare plans. As of now, employers should consider sending an update to their employees regarding the benefits still available to them based on their resident state. Employers should also consider explaining benefits that are still available everywhere, such as contraceptive benefits. Lastly, employers should consult with legal counsel, if they are considering travel vouchers for employees traveling from states that prohibit abortion to states that allow abortion.

If you have any questions about the information in this post, please contact the author of this blog or a member of Dykema’s Labor and Employment practice group.