Considerations for Employers and Employer Plan Sponsors Related to Potential Changes in the Effect of Roe v. Wade

​Various media outlets published a draft US Supreme Court opinion overturning Roe v. Wade late on May 2. The Supreme Court confirmed the authenticity of the document on May 3 but cautioned that the opinion was still in process and subject to revision. A ruling overturning Roe would make abortion unlawful in 23 states with several others likely to join.

The Supreme Court is currently reviewing a Mississippi law that bars persons from knowingly performing or inducing an abortion after 15 weeks except in cases of medical emergency or severe fetal abnormality. The Mississippi law contravenes the ruling in Casey v. Planned Parenthood, which affirmed Roe and held that state efforts to ban abortion prior to fetal viability violated the US Constitution. The draft opinion would uphold the Mississippi law and overturn the Court's prior decisions in both Roe and Casey, finding that access to abortion is not a right protected by the Constitution. If the Supreme Court officially adopts this or a similar ruling, states would be free to regulate or criminalize abortion if they have a "rational basis" to support their actions.

Twenty-three states have laws that criminalize abortion or say that abortion will automatically become criminalized if Roe is overturned. Texas and Oklahoma have also recently enacted laws that permit individuals to file civil actions against entities that perform abortions or "knowingly engage 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." Both the Texas and Oklahoma laws are being challenged in court.

Companies have been left wondering how to respond to these developments while remaining compliant with federal and state laws. The most pressing concern is likely whether companies can continue offering coverage of abortions through health benefit plans, including by reimbursing costs incurred when travelling outside of a state to procure an abortion.

Legal Factors to Consider

When navigating these issues and potential responses, particularly changes to plans that permit reimbursement for abortions outside of particular states, employers should consider the below factors.

Scope of State Prohibitions

The vast majority of the 23 states with laws that regulate abortion if Roe is overturned would bar the practice entirely with only a few exceptions. Several would simply impose additional restrictions on the practice. The precise limitations imposed will matter greatly. Employers would not be able to pay for or reimburse expenses related to prohibited procedures occurring within that specific state but could cover costs and expenses associated with permissible procedures.

Extraterritorial Application of State Laws

With respect to states with laws barring entities from aiding and abetting the performance of an abortion, such as Texas and Oklahoma, there will be a question as to whether those laws apply to out of state events. The same question could arise in states that criminalize the procedure and have laws generally barring entities from conspiring to violate criminal laws or aiding and abetting the commission of a crime. For instance, it may be argued that a company or company benefit plan violates the Texas law if it reimburses a Texas-based employee for an abortion received in a state that permits abortion, or for related travel costs. The text of the Texas and Oklahoma statutes do not provide a clear answer to that question, nor is it clear whether such a provision would be upheld. The general presumption against the extraterritorial application of state law coupled with constitutional concerns raised by that application, however, counsels against a broad reading of their application. This issue will likely be the subject of continuing litigation and debate.

ERISA

To the extent an employer reimburses medical, surgical, and travel costs associated with procuring a legal abortion through the employer's primary group health plan, a health reimbursement arrangement, or other employee welfare benefit plan subject to the Employee Retirement Income Security Act of 1974 (ERISA), the employer arguably has an added layer of protection against any potential criminal or civil cause of action brought under state law through ERISA's broad preemption provisions.

Under Section 514 of ERISA "any and all State laws insofar as they may now or hereafter relate to any employee benefit plan" will be preempted. For this purpose, "State laws" include not only state statutes, regulations, and common law, but also the laws of any state administrative agency or political subdivision. The Supreme Court has broadly interpreted the "relate to" provision as encompassing any state law that "has a connection with or reference to" an employee benefit plan. The Court has observed that a state law has an impermissible "connection with" an ERISA plan if it "governs . . . a central matter of plan administration" or "interferes with nationally uniform plan administration." A state law has a "reference to" an ERISA plan if it acts "immediately and exclusively" on an ERISA plan, or if the existence of the ERISA plan is essential to the law's operation. Thus, ERISA preempts state laws insofar as they mandate employee benefit structures or affect plan administration.

In addition to ERISA's broad preemptive authority of state laws relating to an ERISA plan under Section 514, by operation of the Constitution's supremacy clause, ERISA completely preempts any state law cause of action that duplicates, supplements, or supplants the civil enforcement remedies available under ERISA Section 502, effectively replacing a state law cause of action with a federal claim and giving rise to federal question jurisdiction. Therefore, where an employer reimburses medical, surgical, or travel expenses associated with procuring an abortion through an employer-sponsored ERISA plan, arguably any criminal or civil action brought against the employer for "aiding and abetting" and/or intending to "aid and abet" an abortion performed in compliance with the laws of the state in which the abortion is performed should be removed or dismissed, purely on ERISA procedural grounds.

It is possible that a state law imposing criminal liability for aiding and abetting a post-heartbeat abortion could be excluded from ERISA preemption under the savings clause, which excepts "any generally applicable criminal law of a State." A majority of courts have construed the term "generally applicable" narrowly, to encompass only state laws intended to apply to conduct generally—such as laws against larceny and embezzlement. Insomuch as a state law attempts to regulate or prohibit actions of an employer in its capacity as a provider of benefits, plan-sponsor, or plan administrator, a majority of courts and the US Department of Labor have opined that the law was not "generally applicable" and therefore not exempt from preemption under Section 514(b)(4).

Therefore, to the extent a state law attempts to impose criminal liability on an employer for aiding and abetting an abortion through its offer of abortion benefits under an employer-sponsored ERISA plan, it seems unlikely that the law would be deemed "generally applicable" or to fall within this exception. This is especially true where the law is specifically directed towards the conduct of the employer or its executives in their capacity as such.

Nevertheless, an employer should ensure that any abortion benefit offered under its employer-sponsored ERISA plan is specifically limited to benefits to procure a legal abortion, performed in compliance with the laws of the state in which the medical services are rendered.

Developments to Track

Issues in this area are expected to develop rapidly, especially if the Supreme Court releases an opinion that formally overturns Roe. Governors and state legislatures opposed to abortion will move quickly to pass laws regulating the practice if they do not currently have them in place. States with legislatures that support access to abortion may move with similar speed to enshrine and protect that access. Companies will face the difficult task of navigating these competing movements. Employers should continue to monitor the situation closely and engage with legal counsel to develop policies that comply with their various legal obligations.

Contacts

If you have any questions or would like more information on the issues discussed in this LawFlash, please contact any of the following Morgan Lewis lawyers:

Chicago
Saghi Fattahian

Los Angeles
Michelle M. McCarthy

Washington, DC
Sharon Perley Masling
Jonathan Zimmerman
E. Pierce Blue