A large number of American companies they have said that will cover travel expenses of the employees who must leave their states of origin for abortbut these new policies could expose companies to lawsuits and even potential criminal liabilitylegal experts say.
Amazon.com, Apple, Lyft, Microsoft Corp and JPMorgan Chase & Co are some of the companies that have announced plans to provide those benefits through your health insurance plans Following Friday’s decision by the Supreme Court of USA that annulled the historic ruling Roe vs. Wades from 1973 which had legalized abortion throughout the country.
An hour after the decision was known, the Conde Nast CEO Roger Lynchsent a memo to staff announcing a policy of travel reimbursement and calling the court’s ruling “a crushing blow to the reproductive rights«. Walt Disney Company unveiled a similar policy on Friday, telling employees that he recognizes the impact of the ruling on abortion, but remains a committed company and will provide a Comprehensive access to quality health careas explained by one of its spokesmen.
Companies like the health insurer Cigna Corp, Paypal Holdings Inc, Alaska Airlines Inc and Dick’s Sporting Goods Inc they also announced refund policies on Friday.
Restrictions on abortion that were already present in the legislation of 13 statesentered into force as a result of friday ruling and it is expected that at least another dozen states led by Republicans ban abortion.
The court’s decision, prompted by his conservative majorityconfirmed a mississippi law which prohibits abortion after 15 weeks. Meanwhile, some states led by the democrats are moving to reinforce the access to abortion.
Companies will have to raffle a large number of state laws and are likely to antagonize anti-abortion groups and from Republican-led states if they adopt policies that support female employees having abortions.
The state legislators of Texas have already threatened legal repercussions to Citigroup Inc. and Lyft, which had previously announced travel reimbursement policies. A group of Republican lawmakers, in a letter sent last month to Lyft CEO Logan Green, said Texas “will take quick and decisive action« if the passenger transport company applies this policy.
Lawmakers also outlined a series of abortion-related proposals, including a bill law that would prohibit companies from doing business in Texas if they pay for state residents to get abortions elsewhere.
According to Robin Fretwell Wilsonprofessor of law at University of Illinois and expert in health law, it is only a matter of time before companies face demands from states or anti-abortion activistsalleging that abortion-related payments violate state prohibitions on facilitating or assisting abortions.
“If you can sue me as an individual for taking your daughter across state lines, you can sue Amazon for paying her,” Wilson said.
Amazon, Citigroup, Lyft, Conde Nast, and several other companies that have announced refund policies did not respond to requests of comments.
For many large companies that fund their own health plans, the federal law that regulates employee benefits will provide a crucial coverage in the civil lawsuits about its refund policies, according to several attorneys and other legal experts.
The Employee Retirement Income Security Act of 1974 (ERISA) prohibits states from adopting requirements that “relate to” employer-sponsored health plans. For decades, courts have interpreted that language to bar state laws that dictate what health plans can and cannot cover.
ERISA regulates benefit plans funded directly by employers, known as plself-insured anes. In 2021, the 64% of US workers with health insurance employer-sponsored were covered by self-insured plansaccording to Kaiser Family Foundation.
Any business sued over an abortion travel reimbursement requirement will likely cite ERISA as a defense, according to katy johnson, Senior Health Policy Advisor at the American Benefits Council, a trade group. And that will be a strong argument, he said, especially for companies with general medical-related travel reimbursement policies, rather than those focused on abortion.
Johnson said reimbursements for other types of medical-related travel, such as visits to hospitals designated as “Centers of Excellence”“, Already They are commonalthough the related policies with abortion are still relatively rare.
“Although this may seem new, it is not in the general sense and the law already tells us how to handle it,” adds Johnson.
The argument has its limits. Fully insured health plans, in which employers buy the coverage through a commercial insurercover around a third of workers with insurance and are regulated by state law and not by ERISA.
Most small and medium-sized businesses in the US have fully insured plans and couldn’t argue that ERISA prevents states from limiting abortion coverage.
In addition, ERIS can’t prevent that the states aapply criminal lawssuch as those of several states that typify What crime the aiding and abetting abortionso companies that adopt refund policies are vulnerable at criminal charges of state and local prosecutors.
But since most criminal abortion laws have not been enforced in decades, since the Roe ruling, it is not clear that authorities intend to prosecute the companies, according to DAnita Merlaua Chicago attorney who advises companies on benefits.
George is Digismak’s reported cum editor with 13 years of experience in Journalism