Dobbs v. Jackson Women’s Health Organization Archives

Want to Provide Abortion Travel Benefits at Your Company? Here’s How to Protect Employees

by Sarah Raaii | Sep 1, 2022 | Benefit Controversies, Employee Benefits, Health and Welfare Plans

How can companies provide abortion travel benefits to their workers without disclosing sensitive medical information? In this Corporate Counsel article, McDermott’s Sarah Raaii provides insight into how the Health Insurance Portability and Accountability Act (HIPAA) and the Employee Retirement Income Security Act (ERISA) offer protections for workers seeking reproductive healthcare services.

“The most common way that we’ve seen employers offering these abortion benefits is to include them in their existing ERISA health plans, in which case they [the plans] would be subject to HIPAA,” Raaii said.

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What Should GCs Know About the Abortion Landscape?

by Sarah Raaii | Aug 19, 2022 | Benefit Controversies, Employee Benefits, Health and Welfare Plans

What should company general counsels (GCs) know about abortion trigger bans, the Health Insurance Portability and Accountability Act (HIPAA) and how not to break the law in light of the new abortion landscape in the United States? In this MedCity News article, McDermott’s Sarah Raaii offers insight into how companies can protect abortion access for workers.

“One thing that GCs and employers should do is closely track any new state developments in a state you have business interests in,” Raaii said. “And if you have employees all over, unfortunately that could mean keeping track of 50 different states laws because it’s as simple as ‘this state does or doesn’t prohibit abortion,’ there’s different levels of protection.”

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How Can Employers Protect Workers Who Seek Abortion Care?

by David Quinn Gacioch and Sarah Raaii | Aug 17, 2022 | Benefit Controversies, Employee Benefits, Health and Welfare Plans

As US states seek to reduce abortion access in the wake of the overturning of Roe v. Wade, how can employers protect workers who seek abortion care? In this Fortune article, McDermott’s David Gacioch, Sarah Raaii and Ellen Bronchetti offer insight into what the US Supreme Court’s decision means for employee healthcare data, employee benefits and Title VII.

“Any employer who doesn’t already have an assessment of what the end of Roe means for its operations and workforce…needs to get in front of this,” Gacioch said.

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Navigating Data Privacy Questions Post-Dobbs

by Scott Weinstein, Jayda Greco, David Quinn Gacioch, Daniel F. Gottlieb and Carolyn Metnick | Aug 10, 2022 | Digital Health, Employee Benefits, Health and Welfare Plans

The US Supreme Court’s recent decision to overturn Roe v. Wade in Dobbs v. Jackson Women’s Health Organization has raised many questions about potential efforts by law enforcement agencies to obtain data from healthcare and other service providers to detect the performance of a possibly unlawful abortion. For example, data collected by period-tracking apps, patients’ self-reported symptoms, or diagnostic-testing results might be used to establish the timeframe in which an individual became pregnant, and then demonstrate that a pregnancy was terminated, as part of investigative or enforcement efforts against individuals or organizations allegedly involved in such termination.

On June 29, 2022, the office within the US Department of Health and Human Services (HHS) that is responsible for enforcing the Health Insurance Portability and Accountability Act (HIPAA), the Office for Civil Rights (OCR), issued guidance addressing how HIPAA limits disclosures by covered entities and business associates to law enforcement agencies in the absence of a court order or other legal mandate. The guidance provides helpful insight on how OCR may use HIPAA enforcement to discourage unauthorized disclosures of protected health information (PHI) to law enforcement officials in the wake of new state laws outlawing abortion. The guidance also implicitly confirms, however, that HIPAA does not provide a complete shield against law enforcement and litigation-driven requests for abortion-related information.

Read more here.

Fired for Having an Abortion? Unlikely, but It’s Complicated

by Sarah Raaii | Jul 28, 2022 | Benefit Controversies, Employee Benefits, Health and Welfare Plans

Could a worker be fired for having an abortion? According to this Insider article, workplace laws would likely protect pregnant people from discrimination. McDermott’s Sarah Raaii said employers should make sure abortion health plan coverage does not conflict with federal laws.

“Incorporating abortion benefits into an employer’s existing health plan might help mitigate worker privacy concerns,” Raaii said, “since health plans are subject to the Health Insurance Portability and Accountability Act (HIPAA).”

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Abortion Questions Swirl Over Health Lawyers in Post-Roe World

by Stacey Callaghan and David Quinn Gacioch | Jul 27, 2022 | Benefit Controversies, Employee Benefits, Health and Welfare Plans

Following the US Supreme Court’s decision to overturn Roe v. Wade, health lawyers have been busy making sense of the legal implications of the court’s landmark ruling. In this Law360 article, McDermott Partners Stacey Callaghan and David Gacioch offer insight into the myriad of questions they’ve received from hospitals, pharmacies, telemedicine platforms, investors and other players in the industry.

“The field against whom [abortion restrictions] can be enforced becomes so much broader,” Gacioch said. “It’s such a sea change.”

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Workers’ Abortion Privacy at Risk as Texas Targets Employer Aid

by Scott Weinstein | Jul 25, 2022 | Benefit Controversies, Employee Benefits, Health and Welfare Plans

A group of conservative Texas lawmakers is warning employers of potential civil or criminal consequences if they offer out-of-state abortion access to their employees. In this Bloomberg Law article, McDermott Partner Scott Weinstein said many companies offering reproductive healthcare benefits are making sure such benefits aren’t tied to a particular procedure.

“The goal is not to know,” Weinstein said.

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Complex Patchwork of Laws Await Companies Offering Out-of-State Abortion Travel

by Sarah Raaii | Jul 19, 2022 | Benefit Controversies, Employee Benefits, Health and Welfare Plans

Employers seeking to provide their employees with abortion services are facing a dizzying patchwork of laws that differ from state to state, according to this Corporate Counsel article. McDermott’s Sarah Raaii said companies with employees in multiple states “would really need to do a state-by-state analysis of what the abortion laws are, whether and under what circumstances abortion is legal in most states.”

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State Abortion Bans Signal Chaos for Providers

by Stacey Callaghan and David Quinn Gacioch | Jul 8, 2022 | Benefit Controversies, Employee Benefits, Health and Welfare Plans

The US Supreme Court’s decision to overturn Roe v. Wade will generate a minefield of legal and criminal implications for healthcare providers, according to this Healthcare Dive article. McDermott Partners Stacey Callaghan and David Gacioch offer insight into what these restrictive state laws could mean for providers.

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Employers, Employees Search for Answers After Dobbs Decision

by Sarah Raaii | Jul 7, 2022 | Benefit Controversies, Employee Benefits, Health and Welfare Plans

The US Supreme Court’s decision to overturn Roe v. Wade has left employers—and employees—with more questions than answers. While many employers have promised to pay for their employees to travel across state lines for an abortion, it’s unclear if employers might be sued for doing so. In this USA TODAY article, McDermott’s Sarah Raaii said employers may point to Justice Brett Kavanaugh’s opinion on the “constitutional right to interstate travel” for support.

Read more here.

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