With states such as Texas, Alabama, and, most recently, Oklahoma effectively outlawing abortion–and the Supreme Court seemingly poised to back them–some companies are responding by offering to cover any costs related to abortion, including travel, relocation, or legal fees. But that benefit could prompt another legal issue, particularly as some Republican lawmakers attempt to criminalize out-of-state travel for abortion.
In May, a leaked draft opinion from the Supreme Court promised to overturn Roe v. Wade, the case that has guaranteed reproductive freedom for women for nearly a half-century. Twenty-two states now impose strict restrictions on abortion, including 18 states that would either ban abortion outright or allow the procedure only in limited circumstances should the high court overturn Roe.
Many firms including Yelp, Salesforce, Citigroup, and Bumble have already announced plans to cover expenses for employees or their spouses should they choose to get an abortion. Financial company Alloy, for example, now covers 50 percent of legal expenses, up to $5,000, up to $1,500 for travel expenses, and another $1,500 for additional out-of-pocket costs for its roughly 250 employees.
The decision to cover these health care costs in states where abortion is outlawed is certainly a political statement about women’s rights, but there are legal and policy issues to keep in mind, too.
Make sure covering travel aligns with you overall health care policy.
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 if Roe is overturned.
When it comes to covering these 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 specifications. “Leave the medical decisions to your employees, and don’t get involved with specific procedures,” says Matthew Carter, an attorney at Inc and Go, a business registration provider that offers some legal services.
Of course doing so could mean 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. “You have to provide these benefits so employees can get taken care of whatever the particular issue is. If you just make it about abortion, you’re in that red zone of bad reputational and legal risk,” says Rita Gunther McGrath, professor of strategy and innovation at Columbia Business School. 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.
Also be wary of “aiding and abetting” laws, such as those in Texas, that allow individuals to sue anyone–even an Uber driver–for helping others get abortions after the sixth week of pregnancy. Other states, says Gunther McGrath, may institute similar policies if Roe is overturned. Staying in the dark may help companies avoid aiding and abetting laws as plaintiffs would need to prove that the company was aware of covering the procedure for legal grounds to sue.
Lawmakers may make traveling to other states for abortions more difficult.
There is a Republican effort to create a nationwide ban on abortion travel, which is largely dependent on whether the Commerce Clause of the Constitution. 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, says Seth Chandler, professor of law foundation at the University of Houston Law Center. Such legislation, he adds, would likely be upheld as constitutional if Roe is overturned. Of course, getting that passed in the current Democratically controlled Congress would be incredibly challenging.
What’s more likely to happen is a Republican attempt to make abortions more expensive. Here’s just one example of what may be coming down the pike: On May 5, Senator Marco Rubio proposed legislation that would prevent companies from deducting abortion costs for their 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, it would make it more difficult for any company to pay for expenses related, even remotely, to abortion care. Again, this particular legislation stands next to no chance of passing under the current Congress, but that could change depending on the upcoming midterms and the presidential election in 2024.
“While some companies may choose to pay for it anyway, many who put dollars on par with morality might decide that if they can’t get a tax deduction for it, they’re not going to pay for it,” says Chandler.