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July 19, 2022

Companies Offering to Cover Travel for Out-of-State Abortions Will Face Daunting Patchwork of Laws

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Employers "would really need to do a state-by-state analysis of what the abortion laws are, whether and under what circumstances abortion is legal in most states," said Sarah Raaii, an associate at McDermott Will and Emery.


What You Need to Know
  • Companies that have pledged to pay travel expenses for out-of-state abortions face a rapidly shifting landscape of state laws.
  • Some of those laws could expose companies to fines or criminal charges.
  • Some of the legal nuances likely will be contested in court.

Some companies are trying to create workarounds for employees in states with restrictive abortion laws by providing benefits that would allow them to travel out-of-state to access abortion services, joining a chorus of companies that announced they would do so in response to a Texas law last year and the leak of a draft version of the opinion in May.

But employment attorneys say those efforts will occur amid a rapidly shifting legal landscape. Hours after the U.S. Supreme Court eliminated the constitutional right to abortion Friday, multiple states passed laws restricting access to abortion services while more indicated they will do so over the next month.

The attorneys say the breadth of the new state laws—and the pace at which they are going into effect—means in-house counsel at these companies will need to be on high alert, since keeping up on top of the laws will be key to limiting their exposure to litigation—or even criminal penalties.

Companies that have employees in several states and are looking to provide them with abortion-related benefits "would really need to do a state-by-state analysis of what the abortion laws are, whether and under what circumstances abortion is legal in most states," said Sarah Raaii, an associate at McDermott Will & Emery who specializes in employee benefits. "That may be a moving target in the next several days and several weeks."

A significant challenge for legal departments is that the growing patchwork of state restrictions can't simply be boiled down to states that ban abortion and states that don't, Raaii said. "Even the restrictions that we've seen in, for instance, Texas and Oklahoma and some of the other states, it seems like each state has created its own timeline of when or under what circumstances abortion might be legal," she said.

Some of America's largest companies already have jumped into the abortion debate by announcing they would fund out-of-state travel by employees. Companies making that pledge have ranged from Amazon and Apple to Citigroup and Levi Strauss. JPMorgan Chase on Friday said it would do so as well.

But complicating that stance is the reality that states have varying penalties. While some states, including Texas, allow private citizens to file lawsuits against anyone who "aids or abets" an abortion, it's possible other states will pass laws subjecting the same conduct to criminal enforcement, attorneys said.

Because employers that offer abortion-related benefits can arguably be construed as aiding or abetting employees who seek abortion services, understanding the scope of these penalties is key for legal departments, said Michael Elkins, who runs his own employment practice in Fort Lauderdale, Florida.

How will these laws be enforced? Elkins asked. "Will it be aggressively? Will it be moderately? Will it be not at all? And I think maybe, part and parcel of that, is the enforcement mechanism a fine? Are we talking about spaces of criminalized abortion, and then the assistance provisions are part of the potential culpability?"

Legal observers say there's a high likelihood these questions will be battled out in court. Another issue that almost definitely will be litigated is "the extraterritorial application of some of these restrictive state laws"—particularly when it comes to people who live in states with restrictive laws traveling to other states to seek abortion services, said Sharon Perley Masling, a partner and director of workplace culture consulting at Morgan, Lewis & Bockius.

Employers offering travel benefits to their employees are also at risk of being sued, Raaii said. As some states began restricting access to abortion services in recent months, she saw a number of employers roll back benefits that directly cover abortion services in favor of travel benefits, which they believed exposed them to less risk.

"I think to a large extent, that is correct," she said. "However, we've been cautioning employers to still assess potential risks. Some states have indicated that they may attempt to even try to penalize employers who are assisting with travel benefits."

But she said employers faced with such penalties may be able to contest them by citing Friday's Supreme Court opinion. She noted that in a concurrence Justice Brett Kavanaugh wrote that a state should not be allowed to bar its residents from traveling to another state where it is legal to obtain an abortion.

"That was one statement of one Supreme Court justice," she added. "That doesn't necessarily constitute controlling law, certainly. But my suspicion is that this will help fuel potential future litigation if states do try to pursue penalties against employers who are providing travel benefits."

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