By Catherine T. Barbieri and Pamela A. Thein
The Supreme Court of the United States held in Dobbs v. Jackson Women’s Health Organization, that the Constitution does not confer a right to abortion, overruling long-standing precedent in Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey. Since the Dobbs decision, trigger laws in 13 states have banned or will shortly ban abortions, and another 13 states are expected to follow suit. While trigger laws are being challenged in court, there is no question that many states will successfully ban, or severely curtail, abortions within their borders. Moreover, a number of those states would impose criminal penalties on abortion providers, pregnant people, and/or individuals or entities that “aid and abet” abortions.
The Dobbs decision and states’ efforts to ban, curtail and/or criminalize abortions have created multiple legal issues that affect individuals and employers. Fox Rothschild’s attorneys have formed a Post-Dobbs Working Group to evaluate and track these fast-moving developments, and to provide practical advice to clients on how to navigate the post-Dobbs legal landscape. Below is an overview of the developing legal issues.
Employee Benefit Plans
Title VII of the Civil Rights Act of 1964, as amended by the Pregnancy Discrimination Act (PDA), does not require employer group health plans to provide coverage for abortions unless carrying the pregnancy to term endangers the pregnant individual’s life, but plans must provide coverage for medical complications that arise from an abortion (even if the abortion itself was not covered by the plan). Title VII does not prohibit employer group health plans from providing abortion services coverage, and many employer group health plans do provide such coverage.
Has the Dobbs decision changed that? May an employer still provide coverage for abortion services, for example under its group health plan? The answer: It depends.
There are a number of factors to consider with respect to employer group health plan coverage for abortion services, including whether the plan:
- is subject to the Employee Retirement Income Security Act of 1974, as amended (ERISA)
- is fully insured or self-insured (self-funded), given that insurers of fully insured plans are subject to state insurance laws
- provides coverage to individuals who are residents of states that allow or restrict/ban abortions
Some employers are offering travel assistance. For example:
- Broad-based travel benefits under the employer’s group health (medical) plan for all types of medical care covered by the plan (including abortions) when a local network provider is unavailable.
- Travel benefits specifically for pregnant individuals residing in states that ban or restrict abortions who travel to receive abortion services in states where abortions are legal. These travel benefits might be provided under the employer’s group health (medical) plan, a separate employer plan such as an Employee Assistance Program (EAP), Health Reimbursement Account (HRA) or other arrangement, or as taxable cash reimbursements.
With respect to subsidizing out-of-state travel for abortion services, employers must now consider the possibility that one or more states will assert that providing travel benefits violates state criminal laws for aiding and abetting a pregnant individual obtaining an abortion in another state.
Labor & Employment
In addition to evaluating how to navigate the complicated benefits issues discussed above, employers must continue to comply with anti-discrimination and leave laws that protect pregnant individuals. Title VII, as amended by PDA, prohibits adverse employment actions based on “pregnancy, childbirth, or related medical conditions.” The EEOC takes the position that employers may not discriminate against employees on the basis of an employee’s decision to have an abortion. A number of states have parallel anti-discrimination requirements. In addition, multiple federal courts, including the U.S. Courts of Appeal for the 3rd and 6th Circuits, have held that an employee’s decision to have an abortion (or contemplation thereof) is protected by Title VII. Moreover, the federal Family and Medical Leave Act and some state leave laws afford employees leave for serious health conditions, including pregnancy-related conditions. Those laws may be implicated when an employee requests time off to travel out of state for an abortion, particularly where the employee is seeking an abortion due to the risk to the employee’s health. Employers also need to be mindful that suppressing employees’ speech on issues regarding abortion, including leave and benefit eligibility, may risk violating Section 7 of the National Labor Relations Act or state whistleblower laws.
Employers would also be well advised to watch for state laws that impose criminal penalties on residents who receive abortion services (whether in-state or in a place where abortion is legal). If non-U.S. citizen employees receive abortion services, such state laws could potentially jeopardize the employees’ immigration status, and correspondingly their authorization to work in the U.S. Any such laws may deter non-U.S. citizens from seeking employment in these states, particularly when the employment requires a long-term contract or commitment or a lengthy green card-sponsorship process. Questions further arise as to how the decision will affect a non-U.S. health care professional who provides abortion services and whether their immigration status could be impacted.
Directors and Officers
For many Directors and Officers, their leadership in crafting their company’s response to the Dobbs decision may have material effects on their business for years to come. While boards may be able to choose how visibly they engage certain social issues, few, if any, companies will be able to remain silent following Dobbs. The first challenges many boards will face are the need to undertake a critical assessment of the company’s culture and priorities and to craft clear internal and external messaging of the company’s positions. On an issue such as abortion rights, corporate culture will likely not be singular or uniform. Nevertheless, Directors and Officers should approach the issue with the same transparent and well-documented deliberative process as any other board-level decision. This includes hearing from all the company’s stakeholders – investors, employees, managers, customers – which will inform the company’s position. Directors and Officers should also assess the potential financial repercussions of their position and how it is messaged. The financial repercussions could include changes in health care costs, hiring and retention challenges, and customer boycotts. In short, the Dobbs decision calls for corporate leadership and Directors and Officers must rise to the occasion and guide their organizations with deliberate and well-reasoned steps forward.
White Collar Crimes
State laws criminalizing abortion may give rise to investigations, prosecutions and corporate criminal liability. Organizations and individuals will need to understand potential penalties, noting that criminal fines are typically not insurable. Entities also need to evaluate how the absence of Fifth Amendment privileges for corporations should inform their policies and take into consideration the crime-fraud exception to attorney-client privilege. Furthermore, the Act of Production Doctrine generally does not apply to business entities. This means that in most instances companies will be compelled to produce potentially incriminating documents in or subject to their possession, custody or control surrounding corporate programs aimed at facilitating out-of-state health care in a state where abortion is legal. This not only jeopardizes the privacy of employees, it creates the risk that grand juries can subpoena employers to target employees merely for availing themselves of an employer sponsored benefit program. It will be critical for employers and company officials who may face criminal charges for aiding and abetting the violation of state criminal statutes prohibiting or restricting abortions to strategize about how best to protect themselves. Case law on jurisdictional and choice of law issues will continue to develop on whether incorporating or housing a principal place of business in states protective of reproductive rights can provide legal protection to clients.
Health care providers in states that ban or significantly curtail abortion will be faced with potentially complex reporting and investigation requirements, including if a patient comes to the hospital after a potential miscarriage or with post-abortion complications. Questions will also arise regarding what impact, if any, procedures performed by a provider in a permissive state will have on a provider’s license in a restrictive state. Entities will also need to consider the requirements of state licensing boards and accreditation entities. The Dobbs decision will require residency programs to determine how they can provide training to residents (OB residency programs are required to include abortion training as part of the curriculum) as required by the Accreditation Council for Graduate Medical Education (ACGME) and for residents who may practice throughout the U.S., given state law restrictions. In addition, attention will need to be given to providers’ policies and procedures, which will need to be tailored to comply with state abortion law, including in the areas of documentation, reporting requirements, medical versus surgical abortions, determination of what qualifies as a “medical emergency,” treatment of patients from other states, and the prescribing and mailing of Mifepristone across state lines.
The U.S. Department of Health and Human Services (HHS) issued guidance on June 29 discussing privacy protections under the Health Insurance Portability and Accountability Act of 1996 (HIPAA) in the wake of the Dobbs decision. Health care providers will need to evaluate whether they are permitted to disclose an abortion patient’s Protected Health Information (PHI) under HIPAA. HIPAA permits disclosure of PHI if the provider reasonably believes an individual is a victim of abuse or neglect if the disclosure is required by law (and complies with and is limited to the relevant requirements of the law), but also when the disclosure is expressly authorized by statute or regulation and
- The provider, in the exercise of professional judgment, believes disclosure is necessary to prevent serious harm to the individual or other potential victims
- Or the individual is unable to agree to the disclosure because of incapacity and a law enforcement official or other public official authorized to receive the report represents that the PHI is not intended to be used against the individual, and an immediate enforcement activity that depends upon the disclosure would be materially and adversely affected by waiting until the individual is able to agree to the disclosure.
The provider must promptly inform the individual of the disclosure, unless the provider, in exercising professional judgment, believes informing the individual would place the individual at risk of serious harm, or if the provider would be informing the individual’s parent or legal representative and the provider reasonably believes the parent or legal representative is responsible for the abuse or neglect and that informing them would not be in the best interests of the at-risk individual. HIPAA also permits disclosure of PHI by a covered entity “consistent with applicable law and standards of ethical conduct” if the covered entity believes, in good faith, that disclosure is necessary to “avert a serious threat to health or safety” of a person or the public.
A health care provider in a state that outlaws abortion may report a patient to authorities if the provider believes an individual might be harmed, but should tread carefully. The HHS guidance does not address the ability to make disclosures about victims of abuse, neglect or domestic violence. However, in addressing the ability to make disclosures to avert a serious threat to health or safety, HHS states:
“According to major professional societies, including the American Medical Association and American College of Obstetricians and Gynecologists, it would be inconsistent with professional standards of ethical conduct to make such a disclosure of PHI to law enforcement or others regarding an individual’s interest, intent or prior experience with reproductive health care.”
Thus, health care providers will need to evaluate whether they are acting in accordance with standards of ethical conduct before disclosing PHI of an abortion patient under these circumstances.
HHS also issued guidance on June 29 addressing privacy and security risks associated with an individual’s disclosure of PHI using a personal cell phone or tablet, noting in its alert that patients have expressed concerns related to use of fertility trackers and other apps. More often than not, this information is not subject to HIPAA protection and users should proceed with caution.
The Dobbs decision has significant legal and operational implications for businesses and individuals on multiple levels, many of which remain uncertain or are still developing. For this reason, it is important to move deliberately and consult with counsel before taking any steps in response to the ruling. The attorneys of Fox Rothschild’s Post-Dobbs Working Group are monitoring developments around the decision and will continue to provide guidance on these issues as they evolve.
For questions or assistance concerning issues related to Dobbs, contact Labor & Employment Department Co-Chair Catherine Barbieri at email@example.com or Employee Benefits Partner Pamela Thein at firstname.lastname@example.org.