Published on: July 6, 2022
Authors: Gregory Hoff
Dobbs v. Jackson Women’s Health Impact Areas: State Laws, ERISA Preemption, Federal Legislation
The Supreme Court’s decision in Dobbs v. Jackson Women’s Health will have significant legal implications for employers and employees, some of which may take years of protracted litigation to fully resolve.
In the legislative arena, the Dobbs decision could have a more immediate impact as it creates significant pressure on lawmakers on related issues and has stirred movement among Democratic policymakers to attempt to remove procedural barriers to passing legislation.
Below is an outline of some of the outstanding questions and issues presented by the Dobbs decision in the areas of state laws regarding access to abortion, employer-sponsored health care plans and ERISA preemption, and changes to federal legislative priorities.
Liability Issues: State Laws and Abortion Access
To date, abortion is now banned in at least eight states. In total, 13 states have “trigger” abortion bans (laws that are designed to be implemented automatically upon Roe v. Wade being overturned), while the Guttmacher Institute projects that 26 states “are certain or likely to move quickly to ban abortion” in general in the wake of Dobbs v. Jackson. Some of these laws will be the subject of litigation that may slow or block their implementation.
Two states – Texas and Oklahoma – have laws that could create civil liability for parties that “knowingly engage in conduct that aids or abets the performance or inducement of an abortion, including paying for or reimbursing the cost of an abortion through insurance or otherwise.” To date, these are the only state laws that explicitly classify employer coverage or reimbursement of abortion services through insurance or benefit plans as unlawful. However, other states, including South Dakota and Missouri, have already indicated that they will consider enacting similar measures, and some conservative legal groups are pushing for model legislation on the issue for states to use.
It remains unclear whether the laws in Texas and Oklahoma – and similar laws that may follow – will be enforceable against employers who provide assistance to employees or other individuals who seek and/or receive abortions in states where it is legal, whether by actually traveling to such states, or receiving telehealth services or abortion medication by mail. The issue presents significant constitutional questions, including interstate travel and interstate commerce, that will likely require extensive litigation to resolve, including further decisions from the Supreme Court.
To date, no state law imposes criminal liability on the mother for seeking or receiving an abortion. State laws prohibiting or restricting abortion generally impose liability on parties performing the procedure or assisting the mother in accessing abortion.
ERISA Preemption in the Balance
The Employee Retirement Income Security Act (ERISA) preempts state laws that attempt to regulate self-insured employer-sponsored benefit plans. Accordingly, such employer-sponsored plans that provide coverage for abortions and/or travel benefits could be protected through ERISA preemption from state laws banning abortion. However, the extent to which ERISA may preempt state abortion laws is unclear, and involves some exceptions. State laws that impose criminal liability, for example, may be exempted from ERISA preemption. Further, fully-insured plans do not receive the benefit of ERISA preemptions and are subject to regulations under state insurance laws, which, in states banning abortion, will likely involve similar bans on providing abortion benefits under a healthcare plan. Again, resolving such questions will likely involve significant litigation.
Federal Legislation and Policy: Filibuster Talks, Privacy, Paid Leave, Pregnant Workers Legislation Could Receive a Boost
The Biden administration and congressional Democrats are likely to focus on abortion-related legislative and regulatory measures in the lead-up to the November midterm elections, which could temporarily shelve other labor and employment policy priorities in the interim. Further, recently dormant issue areas, such as paid leave and childcare, could receive renewed – and potentially bipartisan – interest.
The current rules of the Senate require 60 votes to end debate on a legislative proposal, effectively rendering it impossible to pass legislation through that chamber without bipartisan support. Since gaining a slim majority in the Senate in 2020, several Democrats have pushed to end the 60-vote filibuster threshold, either outright, or at the least for certain issue areas, such as civil rights and voting rights. Such efforts have met resistance from more moderate members of the party such as Joe Manchin (D-WV) and Kyrsten Sinema (D-AZ), and until recently did not receive much if any overt support from the executive branch, with President Biden, a 36-year Senate veteran, generally expressing reticence towards changing the rules.
However, President Biden is now on record saying that he supports an exception to the filibuster rule for the purposes of federal abortion rights. This support could kickstart renewed efforts to amend the filibuster rule, although Sens. Manchin and Sinema are still perhaps unlikely to change their previous stances. Changes to the filibuster rule would have enormous implications for policy and enable parties to pass sweeping legislation with only a slim majority in the Senate. Moreover, suspension of the filibuster rule for abortion rights could come back to haunt pro-choice supporters if a future Republican Congress and President were to impose a nationwide prohibition against abortion.
Legislative efforts to regulate data privacy had already been gathering steam at the federal level prior to the Dobbs decision, and in its aftermath will likely be given a new emphasis given the many implications the decision has for privacy concerns. States that prohibit abortions will likely seek to obtain data from tech companies such as Google, Apple, and Facebook related to efforts to receive an abortion, including internet searches, location identification, text messages, and appointment bookings. Further, employers who cover travel and other expenses related to abortions out of state may have knowledge – whether gathered willingly or not – of an employee’s decision to seek or receive an abortion.
Such circumstances present a host of privacy-related issues that have already prompted congressional activity, including the introduction of several bills and a renewed interest in privacy legislation generally. Perhaps the most likely vehicle is the bipartisan American Data Privacy and Protection Act, which passed unanimously out of House panel to advance to the full House Energy and Commerce Committee.
Paid Leave and Child Care
Efforts by Congressional Democrats to pass sweeping paid family and medical leave legislation stalled last year and have remained dormant since. However, in the wake of the Dobbs decision, expanded paid leave and childcare could become a renewed legislative priority for both parties as a means of showing commitments to maternal health beyond abortion rights. Given the impact abortion issues may have on midterm elections and beyond, Republicans may have a larger appetite than previously to expand paid family leave and childcare.
Pregnant Workers Fairness Act
Similar to paid leave and childcare, the Pregnant Workers Fairness Act (H.R. 1065) could see increased chances of passage in the wake of the Dobbs decision. The Act, which would require employers to provide “reasonable accommodations” for pregnant employees and job applicants in line with the Americans with Disabilities Act, passed the House earlier this year with bipartisan support and has yet to move in the Senate.