Employers Must Keep Up with State Constitutions' Changing Abortion Protections

​Since the U.S. Supreme Court's decision last month gave states permission to ban abortion, the details of various state constitutions will be important in guiding what actions come next in state legislatures and courts.

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Employers need to understand the constitutional protections of the states they operate in, which can get tricky when state laws contradict each other. 

Eleven states either indirectly protect abortion rights in their state constitutions or have struck down abortion restrictions that the U.S. Supreme Court has upheld, according to a recent legal analysis from the Center for Reproductive Rights, a New York City-based legal advocacy organization.

Among them:

• Alaska.
• Arizona.
• California.
• Florida.
• Iowa.
• Kansas.
• Massachusetts.
• Minnesota.
• Montana.
• New Jersey.
• New Mexico.
  

"Each state has a unique constitution and court system that is free to protect reproductive autonomy under novel legal theories and rights that the federal constitution may not currently recognize or secure," the legal analysis states.

No state explicitly names a right to abortion in its constitution. In November, voters in California and Vermont will decide on ballot measures to amend their state constitutions to guarantee personal reproductive autonomy.

In contrast, ballot measures in Kansas and Kentucky this year would amend their state constitutions to say they do not provide a personal right to abortion or a requirement for state funding for abortion. Through ballot initiatives, Alabama, Louisiana, Tennessee and West Virginia have already amended their state constitutions to confirm that they do not guarantee the right to abortion.

"It is likely that we will see efforts to pass state constitutional amendments restricting or protecting access to abortion services in the next two years," said Pierce Blue, an attorney with Morgan Lewis in Washington, D.C. "The probable candidates for such action are the states where a clear majority of the voting population either supports or opposes access to abortion services. Those efforts may include ballot measures directly approved by voters, bills passed by state legislatures, or a combination of the two. The process for amending state constitutions varies, however, and some states require multiple votes over the course of several years before an amendment is formally enacted."

Looking at the specific language in your state proposals is key. "The content of these proposals will vary, and it is possible that we will see efforts to define life as beginning at conception," Blue said. "It is too early to tell whether these would have sufficient support to pass. This is a rapidly developing area, so employers and HR professionals should closely monitor developments going forward."

"Courts have not yet fully explored how novel theories or language in state constitutions might guarantee a right to pregnancy, childbirth and security for families as key parts of reproductive autonomy, just as they protect abortion," the Center for Reproductive Rights wrote.

In recent decades, abortion restrictions have often come through state bills and litigation, not constitutional amendments. When abortion restrictions have been challenged, state courts have been tasked with making sure that any constitutional guarantees of liberty, privacy and equality apply to all state residents.

Some states have protected abortion as part of individual privacy rights, maintaining that government cannot intrude on private decision-making. Other states have focused on equality, finding that restrictions on abortion funding discriminated against women relative to men.

It's important to remember that judges are elected in many states, so voters who don't like their abortion decisions can vote them out. In that way, the legal precedent in the state can change with new judges.

State Examples

The legal precedents and constitutional protections vary widely among the states.

In 2016 in Planned Parenthood of the Great Northwest v. Alaska, Alaska's Supreme Court ruled that the law must treat minors and low-income individuals who want to continue a pregnancy equally to those who seek abortions.

In 2002 in Simat Corp v. Arizona Health Care Cost Containment System, Arizona's Supreme Court found that if a state program, such as Medicaid, pays for abortion when a pregnant person faces a threat to life, it must fund abortion when a pregnant person faces a threat to health.

In 2003 in North Florida Women Health and Counseling Services v. State, Florida's Supreme Court ruled that the state cannot require parental consent or parental notification for abortions for minors because the state constitution's privacy provisions don't allow it. However, Florida courts have upheld state laws requiring counseling before abortion and denying state funding for abortion.

Religious freedoms have come into play, as well. A Jewish congregation in Florida recently sued to stop the state's proposed abortion ban from taking effect. It argued that an abortion ban would violate their religious rights in the state constitution. According to Jewish doctrine, a fetus is not a person, and abortion is permissible.

While Roman Catholic, Mormon and Southern Baptist churches oppose abortion, other Christian denominations, including the Presbyterian Church (U.S.A.), the Evangelical Lutheran Church in America, United Church of Christ, and Unitarian Universalist churches support abortion rights.  

Planned Parenthood recently sued Utah to prevent the state's proposed abortion ban from taking effect. This was unique because the lawsuit argued that the abortion ban would violate residents' rights to determine their family composition and to parent, among other things.

ERISA Plans

Employers with fully insured health plans must follow ever-changing state laws. Employers with health plans covered by the Employee Retirement Income Security Act (ERISA) don't have to comply with state laws, but they need to be mindful about situations where their ERISA pre-emption could be challenged. 

"Litigation on the ERISA pre-emption and state regulation issues are surely going to follow—in particular for employers who adopt travel benefits for abortion access," predicted Lorie Maring, an Atlanta-based lawyer with Fisher Phillips, in the firm's alert on the U.S. Supreme Court's decision.

"While employers will naturally want to comply with regulations and constitutional rights, they also want to support their employees in the best way possible without unintended geographic discrimination," said Lauren Winans, chief executive officer for Next Level Benefits, an HR consulting firm in Pittsburgh.