On the heels of the Supreme Court’s decision to overturn Roe v. Wade, several big-name companies such as Microsoft, Nike and Tesla have announced that they plan to assist employees who live in places where abortion is restricted to travel out-of-state to undergo the procedure.
But how that might actually work and what pitfalls employers and employees might encounter remains to be seen.
“I think a lot of employers in reaction to the Dobbs decision are making these very public statements that they’re going to offer abortion travel benefits,” says Bethany Corbin, senior counsel at Nixon Gwilt Law, a firm that specializes in healthcare law.
“A lot of them have not operationalized that yet,” Corbin says. “They’re still working through how this actually works in practice.”
Some employees may be able to go through a company’s insurer
While it’s still early, experts say a few potential options may soon take shape. If the company has an employer-funded medical plan, for example, abortion-related travel benefits could simply be folded into the coverage and administered through an existing plan.
“You go to your employer or the insurance company that they’ve retained and you say, ‘I want to get an abortion.’ And part of that involves travel to another state,” says Robert Field, a professor of health management and policy at Drexel University.
The primary benefit of that approach is that “it really protects the privacy of the employee,” Corbin says, adding that patient data under such a health plan is typically covered by the Health Insurance Portability and Accountability Act, or HIPAA, a federal law aimed at preventing disclosure of sensitive patient health information.
Others might get directly reimbursed by an employer
Another option is to provide supplemental reimbursement for abortion-related travel, run through the employer instead of a company’s insurer.
“If it’s a low-paying job, presumably employers might have to give the money first because the patient couldn’t pay for it on her own and then seek reimbursement and then wait six weeks for the reimbursement to come through,” says Sharona Hoffman, a professor of law and bioethics at Case Western Reserve University.
“It might be cash advances of some sort. It could be transportation,” she says.
Under this scenario, however, the employer would be collecting medical data from the employee. And that raises concerns.
“That data would not be covered by HIPAA,” Corbin says. HIPAA provides for individual penalties of up to $50,000 for each unauthorized disclosure of private medical data. For example, then, an employee in a company’s human resources department who willfully or negligently discloses that an employee is seeking an abortion would not be subject to legal penalties.
Then there’s the potential chilling effect: If an employee acknowledges seeking an abortion, the company’s knowledge of that could serve as “an underlying bias” when making personnel decisions, such as pay increases, promotions or whom to lay off, Corbin says.
Or they might go through an outside provider
Yet another model that could be used is for companies to contract with an outside provider, such as Planned Parenthood. That outside provider would then send an anonymous bill to employers for abortion services.
“It kind of adds in a little bit of separation between the employer and the medical services that are being provided,” Corbin says.
One way to look at employers offering a travel benefit for abortion services is to view it in the context of other medical procedures, says Field.
“Some plans will fly people to the top medical provider, say, to the Mayo Clinic, to get specialized surgery,” he notes. “You can analogize this to a regular medical procedure that requires travel to get to the appropriate provider.”
Offering such services could be a recruiting advantage
Hoffman of Case Western Reserve University says that despite the initial cost of offering travel for an abortion, it could save employers money in the long run.
“It’s certainly cheaper than having to pay for pregnancy care and for delivery of the child and then to support the child for 26 years,” Hoffman says. “So employers might do a cost-benefit analysis and say if the woman really doesn’t want to have a child, it’s cheaper for us as well.”
Offering travel for out-of-state abortion services could also prove to be a recruiting advantage in a tight jobs market, Field says.
“It’s going to apply to younger workers,” he says, noting they are “the kind of people that many companies want to have, and particularly the kind of people that high tech companies want to have.”
But companies could also face a backlash
Even so, there are political sensitivities to wading into the abortion debate, experts agree.
“Not everyone who’s a member of that workforce is going to have the same political beliefs,” Corbin notes.
In a state such as Texas, where the law empowers citizens to file suit to prevent the “aiding and abetting” of an abortion after about the sixth week of pregnancy, any company that provides such services to employees working there could be legally exposed, she says.
An employee opposed to abortion might become a whistle blower who could then turn over to law enforcement information related to a company’s policy on travel services for the procedure.
“That’s going to be a real tough one for employers,” Field says. We’ve already seen the flood of litigation from the Dobbs decision starting to flow in, and that’s one of the major issues that’s going to arise.”
“It is a legal risk for companies,” he says.
“A larger company has the advantage of having the resources for legal costs. A smaller company is going to find that more difficult.”