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Legal Risks Loom For Employers Protecting Abortion Access

US employers are taking steps to provide abortion access to workers despite threats from anti-abortion activists and conservative lawmakers. In this Law360 article, McDermott’s Sarah Raaii said that “we’re certainly continuing to monitor” threats against employers.

“And we’re now in the position — really an unprecedented position for employers — of having to potentially look at 50 different states’ very specifically written laws regarding reproductive health care,” Raaii said. “Some states require some type of coverage, some states prohibit it. So it’s become a lot more burdensome for employers.”

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How Employers, Insurers Are Coping with Abortion After Dobbs

The US Supreme Court’s ruling overturning Roe v. Wade has created more complexity to the country’s patchwork of abortion laws. In this Managed Healthcare Executive article, McDermott’s Sarah Raaii offers perspective about how insurers are navigating healthcare plans state-by-state.

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How the Overturning of Roe v. Wade May Affect US Employer Benefits Plans

The US Supreme Court’s decision to overturn Roe v. Wade has led to a flurry of confusion and questions from employers. In this Benefits Canada article, McDermott’s Sarah Raaii explains how some states are imposing criminal penalties for anyone who assists with abortion within their borders.

“If a court determines state abortion restrictions are generally applicable criminal laws, then potentially, ERISA (Employee Retirement Income Security Act) plans can be subject to criminal penalties if they provide abortion services, including travel benefits,” Raaii said.

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Texas Abortion-related Litigation ‘just getting started’

It was a busy end of August for abortion-related litigation in Texas. Multiple pro-reproductive justice nonprofit groups sued Texas Attorney General Ken Paxton and other prosecutors to protect the ability of pregnant Texans to obtain abortions in outside states, and Texas’ new trigger ban law went into effect. In this MedCity News article, McDermott Partner Caroline Reignley notes how the US Supreme Court’s landmark Dobbs decision “did not end the debate over abortion or limit court intervention.”

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

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?

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?

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

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.

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

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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