Can Employers Cover Their Employees' Abortion-Related Travel Expenses?

Following the Supreme Court's ruling overturning Roe v. Wade, a growing number of large companies have said they will cover travel and other expenses for employees who must leave their home states to get abortions.

But in a country where roughly half of the states will soon ban abortion, employers who reimburse abortion-related expenses could be vulnerable to civil lawsuits and criminal prosecution.

This is an unsettled area of the law, and the extent to which such actions will be viable remains to be seen. Here are some of the key issues employers need to consider.

Potential Employer Liability Under State Civil and Criminal Laws

Approximately half of all US states had "trigger laws," constitutional amendments, or other abortion bans designed to take effect after Roe was overturned. Almost all of these laws make providing abortion a crime, but a few also allow for civil lawsuits via citizen enforcement.

State legislatures are likely to pass additional abortion laws, or amend existing laws, in the wake of the Supreme Court's decision in Dobbs v. Jackson Women's Health Organization.

State Laws Against "Aiding and Abetting" Abortion

Most state laws banning abortion impose penalties on abortion providers, rather than on those who are seeking an abortion or those who assist others in obtaining an abortion.

But a few states explicitly ban aiding and abetting abortion, and other states could soon follow suit. For example, Texas and Oklahoma allow any citizen to bring a civil lawsuit against anyone who aids or abets abortion.

Both states' laws include in their definition of aiding and abetting "paying for or reimbursing the costs of an abortion through insurance or otherwise." In addition, a pre-Roe Texas law makes it a felony to "furnish[ ] the means for procuring an abortion knowing the purpose intended."

Even those states that don't expressly ban aiding and abetting abortion could attempt to forbid any significant acts that facilitate abortion, just as they do with any other crime. For example, some Alabama lawmakers have claimed that Alabama conspiracy laws would criminalize a plan formed within the state to help someone obtain an abortion outside the state.

Others have countered that, because only abortion providers can be liable under current Alabama law, neither employers nor those seeking abortions can be liable for conspiracy to commit a crime of which they can't otherwise be found guilty.

In addition, although no state currently has a law prohibiting travel across state lines to obtain an abortion, some state lawmakers are advancing plans for such laws. For example, pre-Dobbs, Missouri considered a law that would penalize out-of-state abortion providers as well as anyone who helped get a patient across state lines.

Some legislators have also threatened to pass other laws designed to prevent companies from covering their employees' abortion-related expenses. For example, Texas lawmakers have indicated that they plan to introduce legislation barring companies from doing business in Texas if they pay for residents of the state to receive abortions elsewhere.

Such laws may encounter barriers to their enactment, however, as they could conflict with state efforts to attract new business.

State Jurisdiction to Regulate of Out-of-State Travel for Abortion

As a general rule, states don't have jurisdiction to enforce the law beyond their borders. And the Supreme Court has been reluctant to allow a state to punish a corporation for an act the corporation does out of state.

On the other hand, states do generally have jurisdiction to punish acts within their borders that facilitate crimes outside their borders. When an employer pays for an employee's abortion-related expenses, the prohibited act of payment or reimbursement is likely taking place within the state. Absent other considerations, a court in this situation could find that the state has jurisdiction to prosecute the employer for facilitating a crime.

In sum, following the Supreme Court's decision in Dobbs, employers must contend with a patchwork of evolving state laws on abortion. Whether companies will face liability for reimbursing abortion-related travel expenses will depend in part on whether more states pass laws expressly prohibiting aiding and abetting abortion or interstate travel to obtain an abortion, as well as on the degree to which state and local prosecutors target employers as part of their efforts to enforce abortion bans.

Potential Employer Protections Against State Laws Banning Abortion

The Constitutional Right to Interstate Travel

The right to freedom of movement and travel between states has long been recognized by the Supreme Court as a fundamental Constitutional right. In a concurring opinion in Dobbs, Justice Kavanaugh indicated that state laws prohibiting out-of-state travel to obtain an abortion would be unlawful under the Constitutional right to interstate travel.

If states pass laws barring their residents from traveling out-of-state to obtain abortions and criminalizing the act of aiding such travel, the Supreme Court would probably find such laws unconstitutional.

Nonetheless, such laws would remain on the books in the meantime, and lower courts considering them might not agree on whether criminalizing travel for out-of-state abortions and criminalizing paying for such travel are the same thing.

Moreover, the right to interstate travel, like the right to abortion, is not expressly mentioned in the Constitution. Following Dobbs, it may be risky to assume that long-standing precedents that impact abortion are in fact settled law.

Federal Preemption of State Laws Under ERISA

The federal Employee Retirement Income Security Act (ERISA) prevents states from regulating employers' group health plans, which is where medical-related travel assistance usually resides. Under ERISA, states may not dictate what private health plans can cover.

Employers who are covered by ERISA likely have a strong argument that state civil laws prohibiting employers from aiding and abetting abortion are preempted by ERISA. This is particularly true if employers have a policy that pays for travel for a broad array of medical services, rather than for abortion specifically.

While ERISA may provide a defense for some employers, there are significant limitations on its protection. First, ERISA only applies to self-insured benefit plans (those that are funded directly by the employer), which are primarily used by large employers.

The law does not apply to fully-insured plans, in which employers purchase coverage through a commercial insurer. Most small and medium-sized businesses have fully-insured plans and thus are not covered by ERISA.

Second, and most importantly, ERISA can't prevent states from enforcing criminal laws. While it might be an effective defense for employers sued under civil laws against aiding and abetting abortion, it likely won't provide protection in states actively prosecuting criminal cases against employers.

Issues Involved in Enforcement of Abortion Bans Against Employers

States that do prosecute employers for facilitating employee abortions may face obstacles to enforcement. It may be difficult for states to determine whether companies are breaking abortion laws in the first place. Sensitive employee health information is protected by federal privacy laws such as the Health Insurance Portability and Accountability Act of 1996 (HIPAA).

States might seek to obtain company financial records or certifications that no funds have been expended to reimburse abortion-related expense, which could engender additional legal battles. In states with exceptions to their abortion bans, it may be challenging for prosecutors and courts to untangle which employer reimbursements are for abortions permitted under state law and which are not.

Contact an Employment Attorney

If you're an employer considering whether to offer reimbursement of abortion-related medical expenses, it would be a good idea to speak to an employment lawyer before doing so. A lawyer can advise you on the current state of the law where you live, and the potential legal risks involved in such a policy.