Employer Considerations in the Aftermath of the Dobbs Decision

October 3, 2022

On June 24, 2022, the United States Supreme Court overturned the constitutional right to abortion established in Roe v. Wade. In Dobbs v. Jackson Women’s Health, a 6-3 decision, the Supreme Court upheld a Mississippi law banning abortion after fifteen weeks, well before a fetus was considered “viable” under the Roe framework. In the majority opinion, Justice Samuel Alito emphasized that the Fourteenth Amendment’s Due Process Clause does not afford women the right to abortion and confers the right to regulate abortion to individual states. Notably, many states, including Ohio, had enacted statutes regulating abortion which would become effective in the event that the Supreme Court overturned Roe v. Wade.

This article examines several questions that employers should ask in order to assess the ways in which Dobbs has an impact on the extent to which employers can provide coverage to employees for abortions and other female reproductive health care services under their health care plans.

1. Where Do We Do Business?

An employer operating in multiple states must be cognizant of where their employees are working and which state laws they must comply with if they choose to offer abortion-related benefits. As a result of the Dobbs decision conferring the right to regulate abortion to individual states, abortion laws will vary significantly by state. For example, Kentucky, Tennessee and Wisconsin have completely banned abortion with no exception for rape or incest. Ohio has banned abortion at six weeks of pregnancy. Both Oklahoma and Texas have enacted laws that allow citizens to sue for aiding and abetting abortion, which includes paying for and/or reimbursing the costs of abortion through insurance or otherwise. Conversely, abortion is legal in Pennsylvania through the twenty-third week of pregnancy and remains completely legal in both Illinois and New York until viability.

The answer to the question of “where do we do business” may be more complicated than it appears. Since COVID-19, many employers allow employees to work remotely. Even though your facility is in Ohio, for example, you may also be doing business for the purpose of abortion restriction in each state from which a remote employee works.

When considering whether and what coverage to offer its employees, it is critical that employers consider where their employees are working and which state abortion laws apply.

2. What Kind of Health Care Plan Do We Provide?

The type of health care plan an employer offers to employees will determine whether, and to what extent, the employer is subject to state abortion laws.

Currently, 11 states, including Kentucky, Indiana and Michigan, have enacted laws that prohibit employer health plans from covering abortion. However, the Employee Retirement Income Security Act of 1974 (ERISA), a federal law that governs employer-sponsored health plans, preempts the application of state insurance laws to self-funded health plans, a type of plan where the employer assumes financial risk for providing healthcare to its employees. Therefore, if the employer’s plan is a self-funded plan, the state abortion law may be preempted and not apply. On the other hand, ERISA does not preempt the application of state insurance laws to fully insured health plans, a type of plan where the employer buys coverage through a commercial insurer which is subject to state regulation, so the employer with a fully insured plan will be subject to the state abortion law. While more employer plans are fully insured than self-funded, understanding which type of plan you offer is essential to determining whether you must comply with state abortion laws.

3. What About Protected Speech in the Workplace?

Employers should also be mindful of the Dobbs decision’s implications on protected speech in the workplace. While the First Amendment Free Speech Clause does not apply to private workplaces, other laws, like the National Labor Relations Act (NLRA) and Title VII of the Civil Rights Act, protect specific types of expression in the workplace.

As states continue to enact abortion bans of varying degrees, employers should anticipate continued discussions among employees regarding abortion in the workplace. Employers should be mindful that if they attempt to interfere with that speech, they may be considered to be interfering with “protected concerted activity” under the NLRA. Employers should also be mindful that, due to the relationship between religion and abortion, Title VII’s protection against discrimination on the basis of religion may also come into play.

If you are an employer and have questions about how Dobbs may impact you and/or your workplace, please contact KJK Labor and Employment attorneys Rob Gilmore (RSG@kjk.com; 216.736.7240) or Alan Rauss (AMR@kjk.com; 216.736.7221).