Today, in a 6-3 decision, the nation’s highest court reversed the long-standing, seminal pro-abortion case in Roe v. Wade. Justice Samuel Alito authored the majority opinion in Dobbs v. Jackson Women’s Health Organization, holding that, “[t]he Constitution does not confer a right to abortion; Roe and Casey are overruled; and the authority to regulate abortion is returned to the people and their elected representatives.”
This decision has upended abortion access in America as we know it. With many unknowns, and surely swaths of more litigation to ensue, there is one thing that is certain: this reversal will have a sweeping impact for abortion protections in states across America and cause new questions for employers.
With the nuanced state-by-state laws, employers – and especially national employers – may question whether and how to support abortion rights for their employees. There are companies who have already agreed to provide abortion travel related benefits to their employees as part of their healthcare plans. Amazon, Tesla, and Citigroup are some of the most notable companies to offer this.
In deciding whether your company will offer such benefits, it will be important to evaluate any legislation that currently impacts this decision and if there are any privacy risks for employers looking to offer abortion benefits. For example, employers can consider offering all benefit reimbursements for the procedure directly with their insurance company. This way, the employer would never have to know that the employee exercised its abortion benefits. In addition, an employer can consider offering this benefit through FMLA, depending on the nature of the procedure.
Litigation concerning states’ varying laws nationwide is likely to ensue, and surely courts and state legislatures will continue to shape abortion protections for the future. In the interim, reach out to your labor and employment counsel to determine the right path for you and your employees.
© Copyright 2022 Squire Patton Boggs (US) LLPNational Law Review, Volume XII, Number 175
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