The United States Supreme Court on Friday eliminated the constitutional right to obtain an abortion, casting aside nearly 50 years of precedent that began with the Roe v. Wade case. The highly-charged case, decided by the court's conservative majority, is sure to spill over into the workplace. Business owners who don't already know where they stand on the issue, are likely going to have to figure one out, especially if they want to help employees with covering the costs of getting legal abortions.
The 6-3 decision, which has been anticipated since a draft opinion leaked in May, will lead to near total bans on the procedure in about half of the states across the country. Twenty-two states already impose strict restrictions while 18 states are expected to ban abortion outright, or only allow it in limited circumstances. Thirteen states, including Texas, Mississippi, and Oklahoma, already have trigger laws in place that took effect automatically, while others are written to take effect about a month after the ruling, according to the New York Times.
The restriction of reproductive rights has prompted some businesses to help employees get abortions while some have already committed to doing so. A handful of companies have committed to covering travel expenses for employees who need to get abortions, including Starbucks, Tesla, Yelp, Airbnb, Netflix, Patagonia, Salesforce, DoorDash and OKCupid. In the long term, the decision will also necessitate more paid leave and more resources to ensure that women employees have equal opportunities for advancement. It may also require greater retention efforts on behalf of employers to keep women in the workplace, says Beth Silvers and Sarah Stewart Holland, workplace attorneys and co-hosts of political podcast Pantsuit Politics. It could also drive a greater wedge between big and small businesses. The implications for this decision--which directly touch a smaller company's ability to recruit diverse talent--cannot be understated.
"At least in the immediate future, the decision will likely result in an even more strained labor force, and it will cost employers more to attract and retain quality workers," says Silvers and Stewart Holland.
Here's what companies should consider as they navigate how (or whether) to help female employees access reproductive services should they need them.
What to know about covering travel expenses.
The U.S. currently harbors 27 "abortion deserts," or major cities where people must travel 100 miles or more to obtain abortion care, a number that will only increase due to the overturning of Roe.
When it comes to covering travel expenses, staying in the dark may be a company's best option. As an employer, you don't need to ask why an employee seeks medical travel, whether for an abortion or heart surgery. Assuming you have proof that travel or other expenses are medically related, you can have a reimbursement policy in place that covers expenses without requiring specifics.
The risk is that by doing so you might end up covering medical travel costs for services other than abortion. So if this is your policy, you have to be ready for anything. An employee could file a discrimination lawsuit under the American's With Disabilities Act on the basis that some employees are able to receive travel incentives for certain medical conditions and not others.
One way to restrain costs is to set up a Health Reimbursement Arrangement to support eligible expenses. With this arrangement, an employer can allot a set amount of money for employees to use on medical expenses they choose, in a tax-advantaged account-based health plan. That plan can include expenses such as travel, accommodation, meals, and lodging. Companies can also cover the costs of a legal abortion procedure (in a state where it remains legal) through the funds.
See if abortions are covered under your health insurance plan.
Whether your employees are able to access reproductive care through their insurance depends largely on their benefits package and whether your company offers fully insured or self-funded plans.
Companies with self-funded plans administered by third-party insurers can decide what they choose to cover. In that case, simply contact your health care representative. Many businesses are unaware that they already have it as part of their plans or that they can ask for it, Laurie Sobel, associate director for women's health policy at the Kaiser Family Foundation, a nonprofit organization focused on health care, told Inc.
If your company has a fully-insured health insurance plan, which most small businesses are, it gets a little more complicated. Fully-insured health plans are subject to state insurance regulations, so employees won't have access to abortion care if the procedure is outlawed. Additionally, 10 states currently restrict insurance companies from covering abortion in state-regulated private plans; and nine of those 10 states permit abortion riders, or optional coverage features you can add to your life insurance policy for an additional cost.
However, four states--Arkansas, Ohio, West Virginia, and Utah--that now mostly ban abortions also require health insurances to cover fertility benefits, says Kathryn Bakich, the National Health Compliance Practice Leader at Segal, the employee benefits consulting firm. How employers navigate coverage in those states is still relatively unknown.
You can also pay for the procedure out of pocket. The median patient charge for an abortion from 2017 to 2020 was $560; it has since increased to $575 for abortions performed during the first-trimester and $895 during the second-trimester, according to an April 2022 study published in Health Affairs.
Know the state-specific laws; watch out for additional legislation.
Keep in mind that business owners need to stay up-to-date on additional restrictions such as aiding and abetting laws. These laws, such as those in Texas, allow individuals to sue anyone--even an Uber driver--for helping others get abortions after the sixth week of pregnancy, and they may be tricky to get around. Which is again, another reason to stay in the dark when it comes to covering costs.
There is also a Republican effort to create a nationwide ban on abortion travel, which is largely dependent on whether the Commerce Clause of the Constitution can be used to restrict people from crossing states lines to get abortions. That clause, granting Congress the right to regulate interstate commerce, is a potential tool for triggering something akin to a ban on abortion travel. Congress could, say, outlaw interstate travel for the purpose of performing an abortion, or obtaining one. Such legislation is likely to be upheld given the overturning of Roe, Seth Chandler, professor of law foundation at the University of Houston Law Center, told Inc. Of course, getting that passed in the current Democratically controlled Congress may be challenging.
Republicans will also likely attempt to make abortions more expensive. On May 5, Senator Marco Rubio proposed legislation that would prevent companies from deducting abortion costs for employees and their families. The tax code generally allows companies to deduct business costs, including employee health coverage and other benefits. Should this measure gain approval, costs would rise for any company willing to pay for expenses related, even remotely, to abortion care.