July 20, 2022

On June 24, 2022, the U.S. Supreme Court overturned Roe v. Wade, the 1973 ruling that protected the right to obtain an abortion. Simply put, the Supreme Court said abortion is not a constitutional right, and it is up to the states to regulate.

There continues to be significant uncertainty as states roll out new abortion laws. States with trigger laws went into effect automatically upon the Roe v. Wade reversal, banning abortion. Other states enacted laws a month after the ruling, some banning it outright and others only allowing it in limited circumstances.

Businesses, human resources, and benefits providers have complicated waters to navigate. Many large corporations immediately committed to helping employees get abortions. For example, Starbucks, Airbnb, Netflix, Yelp, Tesla, Patagonia, Salesforce, DoorDash, and OkCupid said they would cover travel expenses.

But it may not be as simple as traveling to the nearest state where abortion is legal. Employers will need to find out where their state stands and what benefits are available.

Keep up with state regulations.

Some states have already passed abortion bans, forcing many women to travel for the procedure.

Future state legislative changes are expected, such as a ban on providing or helping someone obtain an abortion. Aiding and abetting laws in Texas allow individuals to sue anyone, even an Uber driver, for assisting others to get abortions after the sixth week of pregnancy.

The Roe v. Wade reversal has spurred Republicans to create a nationwide ban on abortion travel, which depends heavily on whether Congress can use the Constitution’s Commerce Clause to restrict people from crossing state lines to get abortions. The clause grants Congress the right to regulate interstate commerce. If passed, Congress could ban interstate travel for the purpose of performing an abortion or obtaining one. 

There are also efforts to make abortions more expensive. One recent law proposed by Senator Marco Rubio would prevent companies from deducting abortion expenses for employees and their families. So costs would rise for any company willing to pay for expenses related to abortion care.

Even if your state has not decided, you can likely get a pulse on where they will fall. Then decide what action you will take.

Be careful about covering travel expenses.

More states will probably implement laws like those mentioned above. Staying in the dark could be your best option if you decide to cover abortion travel costs. Don’t ask why an employee seeks medical travel — instead, create a policy that encompasses all medical travel expenses without requiring specifics. Simply ask for proof that travel or other expenses are medically-related.

This means you might end up paying for medical travel costs outside abortion. Ensure your policy is equitable and that your HR and management team handle every situation equally to avoid lawsuits related to the Americans with Disabilities Act (ADA). Don’t be selective by allowing travel incentives for certain health conditions and not others.

Your business can also control costs by setting up a Health Reimbursement Arrangement (HRA), an employer-funded group health plan you can use to reimburse employees tax-free for eligible medical expenses up to a set annual amount. With an HRA, you can:

  • Include expenses like travel, accommodation, meals, and lodging.
  • Costs of a legal abortion procedure (in states where it remains legal) through the funds.
  • Roll over unused amounts to the following year.

Review your health insurance plan.

Review your health insurance plan closely with your benefits provider and determine if and how you should expand employee benefits to include abortion coverage. 

Do you have nationwide coverage?

You likely don’t need to do anything if you have nationwide coverage because it is in your overall benefits coverage for employees. However, employees will have to travel for the procedure if your insurance plan covers only one state and your state bans abortion.

Where is your workforce located geographically?

If your state does ban abortion and you want to develop a travel reimbursement benefit for abortions, you’ll need to assess where your workforce is located. Then you can evaluate your current health plan’s limitations and determine what changes to implement.

Do you have a self-funded or fully-insured health insurance plan?

If you have a self-funded plan (i.e., one in which you act as the insurer and take on the risk) administered by a third-party administrator (TPA), you can choose what you cover. Reproductive care, including abortion, may already be part of your plan. If not, you can ask for it.

If you have a fully-insured plan (i.e., you pay monthly premiums to an insurance company), like most small businesses, things are more complicated. Fully-insured health plans are state regulated — meaning if your state bans abortion, your employees won’t have access to the procedure.

Learn the differences between fully-insured and self-insured health plans.

Employers should note, however, that:

  • Neither fully-insured nor self-insured health plans can provide tax-free coverage for abortion procedures performed in states banning or limiting abortion. 
  • Insured plans in states banning abortion may not be allowed to pay for abortions in states where it is legal.
  • Employees can’t receive reimbursements under FSAs, HSAs, or HRAs if the abortion is performed in a state where it is illegal.

You can also pay for an employee’s abortion care out of pocket. According to a 2022 Health Affairs study, the median cost for an abortion in the first trimester is $575 and in the second trimester is $895.

Enhancing other benefits and opportunities.

While you may find a successful way to add medical travel expenses to help your staff and keep them safe, you might also consider: 

  • Increasing paid leave
  • Providing flexible schedules
  • Childcare assistance
  • Adoption benefits
  • Ensuring women employees have equal opportunities for advancement
  • Implementing new retention programs focusing on women in the workplace

The Roe v. Wade reversal will likely strain the workforce even further. Offer a combination of benefits to help those in need of abortion care as much as possible while supporting parents with children (a population that may increase if abortion is less common). An empathetic, compassionate approach will be critical to retaining your top talent.

Maintain open, honest communication.

Follow three crucial steps to show employees you care and support them:

  1. Check in with your employees. Find out how they feel and if they need someone to talk to. Encourage conversations or use an anonymous survey. Consider offering mental health support for those who might be struggling with the news and uncertainty.
  2. Let your team know where you stand on abortion. Believe it or not, employees want to know your opinions on matters that affect them, like healthcare and social justice issues. Being open and honest with your team can promote a healthy culture and enforce their trust in you. 
  3. Communicate all benefits changes with employees. Share updates with them regularly and ensure workers understand the processes for things like medical travel expense reimbursement and paid leave. 

The Roe v. Wade reversal is anticipated to have long-term ripple effects on state legislation surrounding abortion care and overall reproductive rights. Employers should stay attuned to new abortion laws in their states and review their benefits and policies. 

Most importantly, keep your finger on the pulse of your team’s morale. Businesses, HR leaders, and benefits providers have an opportunity to put their best foot forward by putting their employees’ well-being first. Show them you hear them and value their mental and physical health. 

If you need guidance on how best to support your people and expand health benefits in the wake of the Roe v. Wade overturn, contact our HR specialists at 603-818-4131 or info@bluelionllc.com

The information on this website, including its newsletters, is not, nor is it intended to be legal advice. You should contact an attorney or HR specialist for advice on your individual situation.