My colleague at PJ Media Athena Thorne wrote a list of companies who have promised employees they will cover costs related to travel for an abortion. But some of those companies may be subject to serious legal challenges, including potential criminal liability.
It’s not all cut and dried for either side. And federal law will probably protect many of those companies from lawsuits and criminal liability because their health care plans fall under the Employee Retirement Income Security Act of 1974 (ERISA). ERISA prevents states from dictating what health plans can and cannot cover.
ERISA regulates benefit plans that are funded directly by employers, known as self-insured plans. In 2021, 64% of U.S. workers with employer-sponsored health insurance were covered by self-insured plans, according to the Kaiser Family Foundation.
Any company sued over an abortion travel reimbursement requirement will likely cite ERISA as a defense, according to Katy Johnson, senior counsel for health policy at the American Benefits Council, a trade group. And that will be a strong argument, she said, particularly for businesses with general reimbursement policies for necessary medical-related travel rather than those that single out abortion.
Johnson said reimbursements for other kinds of medical-related travel, such as visits to hospitals designated “centers of excellence,” are already common even though policies related to abortion are still relatively rare.
But not all companies have these self-insured plans. They generally purchase employee insurance through a commercial insurer. Those plans cover about one-third of workers in the United States with insurance and are regulated by state law and not ERISA.
Nor can ERISA prevent states from enforcing criminal laws such as those in several states that make it a crime to aid a woman in getting an abortion.
So the consequences for companies funding abortion travel could be severe, depending on how vigorously a local prosecutor wants to pursue individual cases.
It is likely only a matter of time before companies face lawsuits from states or anti-abortion campaigners claiming that abortion-related payments violate state bans on facilitating or aiding and abetting abortions, according to Robin Fretwell Wilson, a law professor at the University of Illinois and expert on healthcare law.
“If you can sue me as a person for carrying your daughter across state lines, you can sue Amazon for paying for it,” Wilson said.
Amazon, Citigroup, Lyft, Conde Nast and several other companies that have announced reimbursement policies did not respond to requests for comment.
For many large companies that fund their own health plans, the federal law regulating employee benefits will provide crucial cover in civil lawsuits over their reimbursement policies, several lawyers and other legal experts said.
As befitting a federalist argument, whether or not a company is punished or targeted for a lawsuit will depend on which state the company operates in and what the law says in the individual jurisdiction.