Employee Benefit Considerations from the Overturning of Roe v. Wade

Shana D. Velez, Esq.

On June 24, 2022, the Supreme Court of the United States issued its opinion in Dobbs v. Jackson Women’s Health Organization, overturning Roe v. Wade and eliminating constitutional protection of the right to abortion.[1]  In Dobbs, the majority of the Supreme Court Justices held that the right to an abortion was not “deeply rooted” in the history of the United States and therefore should not enjoy the same protections as rights that have clear origins in the history of the United States.[2]   The Court held that individual states, through elected officials, have the ultimate say on regulating reproductive healthcare. Shortly after the ruling, a number of high-profile companies announced changes to the healthcare benefits they offer their employees.[3]

In light of the ruling in Dobbs, employers began looking at the reality of how the decision will affect their employees’ ability to obtain healthcare services now that reproductive healthcare is available only in 19 states and the District of Columbia.[4]  As reproductive healthcare is no longer widely available throughout the country, companies must consider the ramifications on their employees’ lives if they must travel out of state to obtain necessary healthcare services.  Employees may need additional personal time off, will have increased expenses if they are forced to travel out of state to get reproductive healthcare, and may even face criminal charges.

As companies consider the healthcare benefits they provide their employees, they must consider the risks they may be taking by providing coverage for reproductive healthcare.  Most states that now regulate reproductive healthcare impose criminal penalties on those who break those laws.  Companies that provide coverage in one way or another for women seeking reproductive healthcare could be held criminally liable for aiding and abetting in Texas, Oklahoma, and potentially additional states. 

One question companies are grappling with is whether a self-funded insurance plan governed by the Employment Retirement Income Security Act (ERISA) can be subject to state regulations with respect to reproductive healthcare because ERISA plans are governed by federal law.  ERISA plans, however, do not shield employers from criminal liability should a prosecutor decide to pursue charging a company for providing reproductive healthcare benefits in a state that bans reproductive healthcare. 

Campbell Litigation, P.C. will continue to evaluate the impact to employers of overturning Roe v. Wade and will provide further updates.

[1] See Dobbs v. Jackson Women’s Health Organization, 597 U.S. _____ (2022).

[2] Id.

[3] Amazon, Apple, Face Book’s parent company, Meta, Starbucks, Tesla, Yelp, Airbnb, Microsoft, Netflix, Patagonia, DoorDash, JP Morgan Chase, PayPal, Levi Strauss & Co., Dicks Sporting Goods and Disney announced changes to their employee benefits packages that include providing benefits for employees who must travel to obtain reproductive healthcare.

[4] See https://www.theguardian.com/us-news/ng-interactive/2022/jun/28/tracking-where-abortion-laws-stand-in-every-state