Legal clashes await US companies covering workers’ abortion costs

(Reuters) – A growing number of large U.S. companies have said they will cover travel costs for employees who have to leave their home countries to have abortions, but these new policies could expose companies to lawsuits and even potential criminal liability, legal experts said.

Amazon.com Inc., Apple Inc., Lyft Inc., Microsoft Corp. and JPMorgan Chase & Co. were among the companies that announced plans to provide these benefits through their health insurance plans ahead of Friday’s U.S. Supreme Court ruling reversing the landmark 1973 ruling. . Roe vs. Wade decision that legalized abortion nationwide.

Less than an hour after the ruling was released, Conde Nast chief executive Roger Lynch sent a memo to staff announcing a travel reimbursement policy and calling the court’s decision “a blow to human rights.” reproductive”. Walt Disney Co. unveiled a similar policy on Friday, telling employees it recognizes the decision’s impact on abortion but remains committed to providing full access to quality health care, according to a spokesperson.

Health insurer Cigna Corp., Paypal Holdings Inc., Alaska Airlines Inc. and Dick’s Sporting Goods Inc. also announced refund policies on Friday.

Abortion restrictions that were already on the books of 13 states went into effect following Friday’s ruling and at least a dozen more Republican-led states are expected to ban abortions.

The court’s decision, prompted by its conservative majority, upheld a Mississippi law that bans abortion after 15 weeks. Meanwhile, some Democratic-led states are taking steps to bolster abortion access.

Companies will have to navigate this patchwork of state laws and risk the ire of anti-abortion groups and Republican-run states if they adopt pro-employee abortion policies.

Texas state lawmakers have already threatened Citigroup Inc. and Lyft, which previously announced travel refund policies, with legal repercussions. A group of Republican lawmakers, in a letter last month to Lyft chief executive Logan Green, said Texas “will take swift and decisive action if the ride-sharing company implements the policy.”

Lawmakers also introduced a series of abortion-related proposals, including a bill that would bar companies from doing business in Texas if they paid for state residents to have abortions elsewhere.

Lawsuits in sight

According to Robin Fretwell Wilson, a law professor at the University of Illinois, it’s likely only a matter of time before the companies are sued by states or anti-abortion activists claiming the payments related to abortion violate state prohibitions on facilitating or aiding and abetting abortions. and expert in health law.

“If you can sue me as the person for transporting your daughter across state lines, you can sue Amazon to pay for it,” Wilson said.

Amazon, Citigroup and other companies that have announced refund policies did not respond to requests for comment. A spokesperson for Lyft said, “We believe access to healthcare is essential and transportation should never be a barrier to that access.”

For many large companies that fund their own health plans, federal law governing employee benefits will provide crucial cover in civil lawsuits over their reimbursement policies, multiple attorneys and other legal experts said.

The Employees Retirement Income Security Act of 1974 prohibits states from adopting requirements that “relate” to employer-sponsored health plans. For decades, courts have interpreted this language to outlaw state laws that dictate what health plans can and cannot cover.

ERISA regulates employee benefit plans funded directly by employers, called self-insured plans. In 2021, 64% of U.S. workers with employer-sponsored health insurance were covered by self-insured plans, according to the Kaiser Family Foundation.

According to Katy Johnson, senior health policy attorney at the American Benefits Council trade group, any company sued over an abortion travel reimbursement demand will likely cite ERISA as a defense. And that will be a strong argument, she said, especially for companies with general policies for reimbursing necessary medical travel rather than those that prioritize abortion.

Ms Johnson said reimbursements for other types of travel related to medical reasons, such as visits to hospitals designated as “centres of excellence”, are already common, even if policies related to abortion are still relatively rare.

“While this may seem new, it is not in a general sense and the law already tells us how to handle it,” Ms Johnson said.

Limits

The argument has its limits. Fully insured health plans, in which employers purchase coverage from a commercial insurer, cover about one-third of workers with insurance and are regulated by state law, not ERISA.

Most small and medium-sized American businesses have fully insured plans and could not argue that ERISA prevents states from limiting abortion coverage.

And ERISA cannot prevent states from enforcing criminal laws, such as those in several states that make it a crime to aid and abet abortion. Thus, employers who adopt refund policies are vulnerable to criminal charges from state and local prosecutors.

But since most criminal abortion laws have not been enforced for decades, deer was decided, it’s unclear whether officials would try to sue the companies, according to Danita Merlau, a Chicago-based attorney who advises companies on employee benefits issues.

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