Considerations in a Post-Roe Era
Here we are. We have arrived in the post apocalyptical hell of what the United States looks like in a world where federal parameters on abortion rights cease to exist, failing a nation of women, young and old, and voicing loud and clear that women’s medical decisions are not private or their own.
It is astonishing to think that some grandmothers had more rights than their granddaughters do now, but this is the shameful world we live in now - one that has failed to adequately account for and protect its citizens; one that participates in open and blatant gender discrimination, only to further marginalize populations of already (disproportionately) suffering communities; one that has taken our society, our communities, and our mindset back hundreds of years; and one that has stunted progress without any consideration of impact to play political games. I shudder to think my daughter will become a woman in this place - the United States - poised to be a global outlier in women’s abortion and reproductive rights. What a sad state for a once-upon-a-time global superpower.
While this talk is nice and all, I want to show what this change in regulatory and legal landscape ACTUALLY means. Some may think it is just the state taking back autonomy on what they think are “state rights” (I beg to differ, but that’s neither here nor there), but the complexity impacting this issue, particularly from an employment perspective, is quite immense.
Recently, Kansas took a big step in rejecting their state constitutional amendment removing abortion rights as a right within the state. However, we know not all red states will take that turn and there may be additional upsets along the way. What’s that saying…the road to hell is paved with good intentions.
First, I’d like to point out some key considerations for employers who are trying to support their employees in this process:
The legal landscape is changing regularly on this topic so monitoring of state actions is incredibly important. Many states have taken current positions, but that can all change rapidly come November, post elections. We have seen a wide variety of potential changes in circumstance that could lead to a turnover in the current regulatory framework - state senate and representative elections, gubernatorial elections, US Senate and House of Representatives elections, and other local elections. Many states have introduced referendums or amendments to state constitutions, which will be topics to be voted on, while others have simply moved to implement more restrictive measures (whether by trigger ban or otherwise), that have already cut off access at the knees. Some states have taken even further steps in implementing criminal statutes for “aiding and abetting",” generally targeted at abortion providers (more to come on this point below). The framework is a sad, chaotic array of limitations to healthcare for women. A blunt portrayal of political games played with women’s lives and livelihoods for power grabs and fame. Voting will be critical in ensuring that women’s rights are not shredded with the next cycle of voting.
The implementation of aiding and abetting statues have created risks for other service providers, such as insurers and the employers providing support for abortion services (i.e. travel, lodging, services related to mental health, access to providers, etc.). While statues target service providers directly, which at this point has been meant to mean the physician, nurses, and hospital staff performing abortion services, there is an expectation that support provided by employers and insurers will come under fire and will be litigated as to whether such support would qualify as aiding and abetting under the statutory framework. This is still tbd.
Employers are prohibited from discriminatory practices against employment actions related to pregnancy, childbirth, etc. The Equal Employment Opportunity Commission (“EEOC”) has taken the position that an individual’s decision to get an abortion is protected under labor and employment laws and an employer is prohibited from taking discriminatory actions against the employee on those grounds.
ERISA (federal law) generally preempts state insurance applications/restrictions (for plans subject to ERISA), but we anticipate this to be litigated on the basis of the Dobbs decision. Fully insured plans are subject to state insurance laws and such laws may limit coverage (including things like statutes requiring physical presence for purpose of abortion services which will put telehealth capabilities in this space at risk), so if the insured is in a state that bans abortions, there is limited ways in which an insurance provider/employer can provide support for such services. Similarly, if you have a high deductible health plan and are covering travel at first dollar coverage, the individual would no longer be HSA eligible.
Tax considerations apply given that taxability of medical benefits depends on whether the service is considered medical care under IRC Section 213.
Privacy will come under full review here, as HIPAA governs the medical industry, but permits disclosure if the provider reasonably believes an individual is a victim of abuse/neglect and when disclosure is authorize by statute/regulation, as well as where disclosure is necessary to avert a serious threat to health or safety of a person or the public. Where states implement criminal statutes or providers are required by law to disclose the information, providers may report a patient to the authorities (although they are unlikely to report themselves as the provider so it may be a physician in a state where abortions are banned reporting a provider and patient where abortions are not banned). Major professional societies like the American Medical Association have indicated such a practice would be inconsistent with professional standards of ethical conduct in the medical space, particularly as it relates to reproductive health care.
The Dobbs decision is a labyrinth in the employment and insurance context with an incredible amount of unknowns, so tracking state developments and litigation/legal precedent interpretation will be key. On July 8th, President Biden did issue an Executive Order providing guidance and outlining individual privacy as a key factor in this space.
Yet, there are still additional legal considerations that have arisen from the Supreme Court’s unfathomable decision to overturn Roe and Casey to punt decision making to the States (and ensure lengthy litigation, inconsistency, and pure chaos. Here are some additional topics to consider:
Where a state imposes criminal penalties on residents who obtain abortions, immigration status could be in jeopardy.
Physicians will need to consider impact on licensing related to providing services to those from a state that has banned or restricted abortion access and related services.
IVF, or in vitro fertilization, is becoming a gray space in a post-Roe era. For those who don’t know, IVF is the process where a woman’s eggs are lab fertilized and then embryos are implanted into a patient, or otherwise frozen, donated, or disposed of. This process is generally utilized by those having difficult getting pregnant and extractions are sometimes elected for freezing purposes due to age, etc. In the post-Roe era, there are situations where embryos are lost - a natural attrition as part of the culture process, which is now being criminalized, as is the disposition of embryos. These types of concerns will absolutely impact those who are family planning and utilizing IVF to do so.
Data, data, data. I cannot stress the importance of privacy enough in this context. From menstrual cycle tracking apps to healthcare information provided to employers, insurance, and providers, there are a whole slew of considerations as to how your sensitive personal data will be used, particularly in the big data space in which we currently reside. Make sure you are making smart choices about what is being tracked, how your data is being collected, what it is being used for, if it is being sold to third parties, and what your rights are in your jurisdiction when it comes to data privacy. This is particularly important for individuals of color as we have long understood such populations to be targets of surveillance, which is incredibly more concerning in this context as women of color are already marginalized in this space.
Where will these limitations end? They start bit by bit, fraying the edges of rights we have fought so hard to have until one day, they no longer exist and we look around, mouths agape, failing to understand how did we get here? What’s next, you ask? Gay marriage, interracial marriage (though not if Justice Thomas is concerned), access to contraception…all on the chopping block potentially.
We are in shocking times. As much as we think the hateful rhetoric may have subsided (at least in the public forum) since the Trump Administration, the hatefulness, divisiveness, and extreme applications of ideas have permeated unfathomably across the nation. Keep paying attention. Keep fighting. Keep shouting into the void. It has to get better.
We have to do better than this.
-agl.
