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<i>Dobbs v. Jackson Women’s Health</i> – Proactive Considerations for Employers  <i>Dobbs v. Jackson Women’s Health</i> – Proactive Considerations for Employers

Dobbs v. Jackson Women’s Health – Proactive Considerations for Employers

On June 24, 2022, the United States Supreme Court upheld the State of Mississippi’s restrictions on abortion in its Dobbs v. Jackson Women’s Health Organization decision, overturning the seminal Supreme Court decisions of Roe v. Wade (1973) and Planned Parenthood of Southeastern Pennsylvania v. Casey (1992).  As a result, individual states are once again free to regulate—even eliminate—abortion care.

Before the Court was the Mississippi Gestational Act, which provides that abortion is prohibited: “except in a medical emergency or in the case of a severe fetal abnormality … if the probable gestational age of the unborn human being has been determined to be greater than fifteen (15) weeks.” In analyzing the Mississippi law, the Dobbs majority found that no constitutional right exists to an abortion. The Justices in the majority overruled the Supreme Court’s own prior precedent by holding that “the Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision, including the one on which the defenders of Roe and Casey now chiefly rely—the Due Process Clause of the Fourteenth Amendment.”

While Dobbs is not a decision directly related to employment, employers should remain cognizant of the practical and legal considerations related to the outcome of the case. These considerations should include how employers will maintain a respectful workplace, as well as what steps employers should take to limit exposure to claims of religious discrimination and/or harassment. In addition, employers that wish to add or expand existing abortion-related benefits—including paying travel expenses for employees seeking abortions—should be aware of any risks posed by the various state law restrictions on abortion in the states where their employees reside.  



Encouraging Respect in the Workplace 

Abortion is a polarizing issue in the United States, and most workplaces will include both employees who oppose and favor abortion rights. Employers should acknowledge this fact and take proactive steps to ensure employees are not ridiculed or ostracized in the workplace based on their personal beliefs, some of which may be based on religious convictions (see below). Employers should work to cultivate a positive workplace environment that demands tolerance and respect. In doing so, employers should encourage employees to acknowledge that there are cultural and societal differences among their co-workers, and that, due to varying life experiences, everyone will not agree on all issues, including those related to abortion. Employers should likewise encourage employees to be receptive to different viewpoints and work to create an environment that appreciates healthy conversation and varying beliefs.

Employee Expressions May Be Protected under Title VII

Employee expressions related to Dobbs (or abortion generally) may implicate Title VII, as some employees may express opinions in the workplace that coincide with their religious convictions.  If employees do so, employers should allow religious expression among employees to the same extent other types of non-harassing and non-disruptive personal expression is allowed. In fact, EEOC guidance related to religious expression in the workplace specifically provides that employers should not try to suppress all religious expression in the workplace, and that Title VII requires that employers accommodate an employee’s sincerely held religious belief in engaging in religious expression in the workplace to the extent that they can do so without undue hardship on the operation of the business.  

Considering the deeply divided opinions (religious or otherwise) related to abortions, employers should also be aware that situations can arise in which employees engage in conduct or make comments that may rise to the level of a hostile work environment. Thus, employers should be prepared to address potential issues related to harassment based on employees’ religious beliefs about abortion. The EEOC’s Employer Best Practices on eradicating religious harassment include that “[e]mployers should have a well-publicized and consistently applied anti-harassment policy that: (1) covers religious harassment; (2) clearly explains what is prohibited; (3) describes procedures for bringing harassment to management’s attention; and, (4) contains an assurance that complainants will be protected against retaliation. The procedures should include a complaint mechanism that includes multiple avenues for complaint; prompt, thorough, and impartial investigations; and prompt and appropriate corrective action.” 

Considerations under the National Labor Relations Act

Employers should also be careful not to prohibit employees from engaging in protected concerted activity, such as discussing the terms and conditions of their employment, as to do so may run afoul of the National Labor Relations Act. Employees engage in protected concerted activity when two or more employees take action for their mutual aid or protection, or one employee speaks on behalf of a group of employees, regarding terms and conditions of employment. Employers should remain mindful that employee conversations that are concerted (or that may seemingly be made on behalf of other employees or in response to other employees) and involve, even tangentially, the discussion of benefits may be protected under the NLRA. 

Notably, protected concerted activity does not necessarily need to occur within the confines of the workplace. Indeed, social media postings can be a form of protected concerted activity if employees address work related issues and/or share information regarding benefits (and less applicable to Dobbs, pay and working conditions) for other employees to see, and/or in response to other employees’ posts. Employers must be consistent in the enforcement of their policies, whether it is regarding Title VII, religious harassment/discrimination, or protected concerted activity.


As a result of the Dobbs decision, many employers are considering whether and how they can offer coverage for abortion-related services to employees who reside in states that have enacted laws—or are expected to enact laws—that prohibit or significantly restrict access to abortion.  

The New Legal Landscape for Abortion Coverage 

There is now no federally protected right to an abortion. However, the Pregnancy Discrimination Act of 1978 (PDA), a federal law enacted under Title VII, requires that women affected by pregnancy, childbirth, or related medical conditions be treated the same for all employment-related purposes, including receipt of benefits. As a result, an employer that provides a health plan/policy for its employees must provide coverage of abortion where the life of the mother would be endangered if the fetus were carried to term, and it must also cover complications related to an abortion (regardless of the reason for the abortion). Nothing under the PDA precludes an employer from providing abortion benefits more broadly than what is required by the PDA.

In contrast to the PDA, at least 22 states have enacted, or are expected to enact, state laws that significantly restrict access to abortion in that state. An important consideration for employers is the scope of enforcement regarding these restrictions, and specifically, whether the provision of employer-based abortion benefits exposes the employer to liability under state law. For example, the state laws enacted in Texas and Oklahoma explicitly target employer coverage or reimbursement of abortion services, by authorizing a private right of action against any person or entity that knowingly engages in conduct that “aids or abets the performance or inducement of an abortion, including paying for or reimbursing the costs of an abortion through insurance or otherwise,” if the abortion would violate the state’s law.  It is unclear how these laws will impact group health plans that provide coverage for abortions, including travel and lodging benefits for employees who do not have access to abortion in their state.

For most private employers, ERISA applies to generally preempt state laws that relate to benefits.  ERISA preemption allows employers to provide uniform coverage to employees in all states, without regard to state-specific requirements or restrictions. However, ERISA preemption has its limitations:
  • ERISA plans that are funded through insurance policies are subject to regulation under state insurance laws, notwithstanding ERISA preemption. We expect that many states will amend their insurance laws to prohibit policies issued in those states from covering abortions that are prohibited under state law. These laws could also exclude travel and lodging expenses incurred to obtain an abortion in another state. In such case, the policy would limit the employer’s ability to offer these benefits.
  • ERISA preemption does not apply to generally applicable state criminal laws that do not specifically target employee benefit plans. Therefore, to the extent a state criminalizes aiding and abetting breaking state law generally, or perhaps even abortion access specifically, ERISA preemption may not be available as a defense to a charge against a plan that provides prohibited access.
Non-ERISA plans, such as governmental plans and church plans, are not protected by ERISA preemption, and will need to carefully consider the state laws in which their employees reside.

Potential Approaches to Abortion-Related Benefits

Despite the current legal uncertainty, many employers are considering a number of different options to provide abortion-related benefits to their employees. An employer’s particular approach will need to consider the organization’s culture, employee expectations, and the ability of their carriers and vendors to administer these benefits. 

Prior to implementing any of the options discussed below, employers are strongly encouraged to discuss with legal counsel potential implications, including: (i) whether the additional benefits for abortion raise any concern with mental health parity requirements that apply to group health plans (e.g., does providing a travel benefit for abortions require providing travel benefits for mental health treatments?); (ii) the appropriate taxation of travel and lodging reimbursements under IRS rules; and (iii) the potential risks of civil and/or criminal liability based on the states in which their employees live.
Expanding coverage under existing employer medical plans or through an HRA

Employers that want to offer abortion-related benefits through their existing group health plan should begin by reviewing their current plan documents to understand their plan’s existing coverage of abortion services, including to what extent their plan provides coverage for travel and lodging expenses related to medical care when a covered service is not available in the area in which the covered person lives. The employer should then contact their third-party administrator (if self-funded) or their carrier (if fully-insured) to confirm whether any additional desired options can be offered and administered.  

In cases where the third-party administrator or insurance carrier cannot offer expanded coverage under an employer’s group health plan, the employer may consider alternative funding arrangements. One approach is to integrate its group health plan with a self-funded health reimbursement arrangement (HRA). An HRA is a group health plan in its own right (subject to ERISA and COBRA rights, among others) that provides reimbursement for eligible medical care expenses. An employer could offer an HRA to reimburse for the cost of abortion services that are not covered by the integrated group health plan and/or for travel and lodging expenses necessary to receive medical care. Travel and lodging expenses would be limited to the IRS limits for tax-free benefits, which are fairly low. The same state law risks related to abortion services that apply to an employer’s major medical plan will also apply to an HRA. In addition, an employer will need to consider how an HRA will impact health savings account eligibility if the employer sponsors a high deductible health plan.
Expanding pharmacy coverage for abortion drugs

Similar to the above considerations, employers should review their current pharmacy benefit coverage to understand their plan’s current coverage of abortifacient drugs, and then discuss with their pharmacy benefit manager their options for adding or expanding that coverage. Some PBMs may be reluctant to mail abortifacient drugs into states with laws limiting or prohibiting abortions out of fear of their own liability under such laws. The Biden Administration appears to be taking the position that the U.S. Constitution’s protection of interstate commerce would protect PBMs that ship abortifacient drugs into such states. These legal arguments and vendors’ risk tolerance will likely evolve as the implications of the Dobbs decision become clearer.
Employee assistance program (EAP) benefits 

Employers that want to provide abortion-related benefits to their entire workforce (not just to those employees who are enrolled in the group health plan), can consider offering these benefits through an employee assistance program (EAP). In order for this strategy to be successful, the EAP:  (i) cannot provide significant benefits in the nature of medical care; (ii) cannot be coordinated with another group health plan; and (iii) must be made available to employees at no cost. An employer could use an EAP to provide travel reimbursement related to abortion services specifically, or more broadly to other types of medical care that require the employee to travel. It is yet unclear whether covering abortion-related travel expense will constitute providing significant benefits in the nature of medical care; therefore, employers should work with their legal counsel to determine whether the EAP is structured appropriately, and also to ensure the appropriate tax treatment of the benefits. 
General reimbursement policies 

Employers may also wish to consider general reimbursement policies for medical or wellness travel. These policies would provide a taxable reimbursement of a certain annual amount to any employee who submits eligible receipts for travel and lodging expenses that are incurred for an eligible reason (e.g., travel for medical care). Under this approach, an employer would not necessarily need to know the particular reason for the travel or lodging. This provides the employee with privacy and the employer with an argument against state laws that grant a private right of action for knowingly “aiding or abetting” the procurement of an abortion. On the other hand, these benefits can be costly to the employer—since there can be a broad uptake in their use for a variety of reasons unrelated to abortion—and they are taxable to the employee.  

The employment related implications of Dobbs are far-reaching and may not be settled for years. Employers must be strategic but proactive in addressing these legal matters and developing employee policies. For more information about these issues, contact a member of Ice Miller’s Workforce Solutions Team

This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader should consult with legal counsel to determine how laws or decisions discussed herein apply to the reader's specific circumstances.
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