Employer Assistance for Out-of-State Medical Procedures That Could Be Used for Abortion Services: Do Companies Expose Themselves to Civil or Criminal Liability?
While the U.S. Supreme Court issues impactful and important decisions every term, few cases so dramatically altered and disrupted the legal, social, political, business, and medical landscape as the Court’s June 2022 decision in Dobbs v. Jackson, which overturned Roe v. Wade.
Tens of millions of American women – and tens of millions of American workers – now live in states that have already or soon will criminalize abortion services. For employers, especially those with employees and operations in both red and blue states, Dobbs has caused confusion and concern. It has also led many companies, large and small (including Starbucks, Netflix, Amazon, Tesla, JPMorgan Chase, Meta, and Dick’s Sporting Goods), to offer travel stipends and other benefits to help employees travel out-of-state to get reproductive health care that their home states now prohibit. Although the practice of an employer providing stipends or reimbursement related to travel or specialized medical care out-of-state is not necessarily uncommon, such procedures may now cause companies to incur risks and liabilities to which they were not previously exposed.
Providing assistance to employees for the purpose of reimbursing medical expenses, procedures, or obtaining specialized care still implicates numerous legal and practical issues for companies, from HIPAA privacy matters to expanding coverage under self-insured health plans and to what extent travel reimbursements or stipends are taxable. But now, many employers have an even more fundamental concern: can providing reimbursements or stipends for medical care or treatment expose them (and perhaps the employee) to criminal or civil liability in states that have made abortion a crime?
A Patchwork of Evolving Laws Targeting Women, Health Care Professionals, and Others Who “Aid and Abet” Abortions
It is not an abstract question. Alabama, Arkansas, Kentucky, Missouri, Oklahoma, and South Dakota have already banned or made abortion illegal under trigger laws that went into effect as of the Dobbs decision on June 24, 2022. In the eight months since this decision, at least 18 states have banned abortion. Michigan, however, went in the opposite direction. After voters passed Proposal 3 in 2022 enshrining the right to abortion in the state’s constitution, the Michigan House of Representatives voted in March 2023 to repeal Michigan’s 1931 ban on abortion. Gov. Gretchen Whitmer signed the repeal into law on April 5, 2023. This is in line with approximately 27 states that protect a woman’s right to have an abortion, up to varying points of gestation/viability. Six states where bans had been issued have been blocked by courts in those states. States like Texas that passed restrictive abortion laws before Dobbs are now more likely to enforce them.
After President Biden’s recent Statue of the Union address, a bipartisan group of senators reintroduced a bill that would codify Roe v. Wade into federal law. The Reproductive Freedom for All Act would block states from enacting laws that impose an “undue burden” on pre-viability abortions and protect access to contraception. While it is likely that the bill will pass the Democrat-controlled Senate, the Republican majority in the House of Representatives means the bill is probably doomed.
As such, many multistate employers offering stipends or reimbursement for medical care that could be used for abortion services will need to carefully consider not only anti-abortion laws in their own states but also those on the books in the jurisdictions where their employees reside. Further, with the constitutional doors now seemingly wide-open for even more expansive and draconian restrictions, the legal landscape for employers is far from settled.
Currently, no laws specifically allow a state to criminally prosecute or assess civil penalties against a business that offers a travel stipend for an employee seeking abortion services. However, states such as Texas and Oklahoma have passed laws that create a civil cause of action that allows private individuals to seek injunctive relief and statutory damages against parties participating in or facilitating an abortion. Whether a business could be deemed a part facilitating an abortion by providing stipends for expenses to travel out of state to obtain such services has yet to be determined.
For example, Texas Health & Safety Code Section 171.208, which went into effect September 1, 2021, allows a private citizen to file a civil action against any person (or entity) who:
- Performs or induces an abortion in violation of the law.
- Knowingly engages in conduct that aids or abets the performance or inducement of an abortion, including paying for or reimbursing the costs of an abortion through insurance or otherwise, if the abortion is performed or induced in violation of this subchapter, regardless of whether the person knew or should have known that the abortion would be performed or induced in violation of this subchapter.
It is an unsettled question whether paying for or reimbursing travel expenses – as opposed to paying for or reimbursing the costs of an abortion itself – would constitute “conduct that aids or abets the performance” of an abortion under Texas law. But the expansive language of the statute, providing for liability “regardless of whether the person knew or should have known that the abortion would be performed or induced,” seemingly invites such exposure in Texas for employers or those with employees in the state. While a Texas judge issued a ruling in December 2022 that hobbled the law’s private-citizen enforcement mechanism, the law remains on the books and still poses as-yet undetermined risks for employers in the state.
Legislation Targeting Companies on the Horizon?
Anti-abortion legislators in statehouses and Congress may try to clarify this issue by introducing legislation that specifically targets employers that provide stipends or benefits to facilitate out-of-state abortions. For example, 14 Republican members of the Texas House of Representatives have pledged to introduce bills in the upcoming legislative session prohibiting corporations from doing business in the state if they pay for abortions in states where abortion is legal.
Ever-shifting political winds will largely determine the future of legislation involving employer benefits or financial assistance for out-of-state abortion services. We are constantly monitoring developments and will provide updates as warranted. If you have questions or concerns about offering abortion-related travel benefits to your company’s employees, please contact one of the employment law attorneys at Maddin Hauser.