With states such as Texas, Alabama and, more recently, Oklahoma effectively banning abortions — and the Supreme Court appears poised to uphold them — some companies are moving forward by offering pay any expenses related to the abortion, including travel, relocation or legal fees. But the benefit could raise another legal issue, especially as some Republican lawmakers try to criminalize out-of-state abortion travel.
In May, a leaked draft Supreme Court opinion promised to overturn roe five. Wade, This case has guaranteed women’s reproductive freedom for nearly half a century. There are now 22 states with severe restrictions on abortion, 18 of which either ban abortion outright or allow it only in limited circumstances where the High Court overturned Roe.
A number of companies, including Yelp, Salesforce, Citigroup and Bumble, have announced plans to pay employees or their spouses to choose abortions. For example, Alloy, a financial firm, now covers 50% of legal fees, up to $5,000, up to $1,500 in travel and another $1,500 in additional out-of-pocket costs for about 250 employees.
The decision to cover these health care costs in a state that bans abortion is undoubtedly a political statement about women’s rights; but there are also legal and policy issues to keep in mind:
Make sure that covered travel is in line with your overall health care policy.
The U.S. currently has 27 “abortion deserts,” or major cities where people must travel 100 miles or more to get abortion care, and that number will only increase if Roe v. Wade is overturned.
When it comes to paying those fees, staying in the dark may be the company’s best bet. As an employer, you don’t need to ask your employees why they seek medical travel, whether it’s an abortion or heart surgery. Assuming you have evidence that travel or other expenses are medically related, you can create a reimbursement policy that covers the expenses without a statement. “Leave medical decisions to your employees and don’t get involved in specific procedures,” said Matthew Carter, an attorney with Inc and Go, a business registration provider that provides some legal services.
Of course, doing so may mean that you may end up paying for medical travel for services other than abortion. So if that’s your policy, you have to be prepared for anything. “You have to provide these benefits so that staff can be looked after, no matter what the specific issue is. If you just put it on abortion, you’re in a red zone with bad reputation and legal risk,” Professor Rita Gunther McGrath said. Strategy and Innovation at Columbia Business School. Employees can file discrimination lawsuits under the Americans with Disabilities Act (ADA) because some employees are able to receive travel incentives for certain medical conditions, while others cannot.
Also be wary of “aid and abet” laws, such as the Texas law, which allows an individual to sue anyone — even an Uber driver — for helping someone get an abortion after their sixth week of pregnancy. Gunther McGrath said other states could enact similar policies if Roe v Wade was overturned. Being in the dark may help the company avoid aiding and abetting the law, as the plaintiff needs to prove that the company knows the legal basis covering the proceedings.
Lawmakers could make it harder to travel to other states for an abortion.
GOP efforts to ban abortion travel across the country depend in large part on the Commerce Clause of the Constitution. The provision, which gives Congress the power to regulate interstate commerce, is a potential tool to trigger a travel ban similar to that of abortion. Congress could ban interstate travel for the purpose of performing or obtaining an abortion, said Dr. Seth Chandler, a professor at the University of Houston Law Center’s Law Foundation. He added that such legislation could be upheld as constitutional if Roe v. Wade was overturned. Of course, it would be very challenging to get it through a Congress currently controlled by Democrats.
What’s more likely is that Republicans are trying to make abortion more expensive. This is just an example of what could happen: On May 5, Senator Marco Rubio introduced legislation that would bar companies from deducting abortion expenses for their employees and their families. Tax laws generally allow companies to deduct business costs, including employee health insurance and other benefits. If the measure is approved, it will be harder for any company to pay for abortion care-related expenses, even remotely. Again, this particular piece of legislation has little chance of passing this Congress, but that could change as the midterm elections and the upcoming 2024 presidential election loom.
“While some companies may choose to pay for it, many who equate the dollar with ethics may decide that if they can’t get a tax break for it, they won’t pay for it,” he Chandler.
