Legislation that will provide certainty to multi-state employers that state law may not be used to prevent, restrict, impede, or retaliate against them for offering travel benefits to employees for the purpose of obtaining lawful abortion care, passed out of the U.S. House of Representatives by a vote of 223–205, along party lines.
Prior to the House vote on the Ensuring Access to Abortion Act (H.R. 8297), the Association sent a letter of support encouraging sponsors to strengthen the bill text by defining “entity” to include “employer-sponsored health plans,” thereby providing greater certainty to companies who choose to offer travel coverage for abortion services. In addition, as states continue to respond to the Supreme Court’s decision on Dobbs v. Jackson Women’s Health, the Association encouraged lawmakers to support and strengthen ERISA preemption.
Meanwhile, a similar measure is being considered in the Senate, the Freedom to Travel for Health Care Act (S. 4504). Both the Ensuring Access to Abortion Act and the Freedom to Travel for Health Care Act aim to preempt states that are attempting to prevent residents from obtaining abortions in less restrictive states or that may do so in the future. H.R. 8297 and S. 4504 would protect providers, abortion seekers, and those who provide transportation benefits from legal retaliation by states. The House bill also clarifies that constitutional protections for interstate commerce preempt state laws when it comes to abortion pills.
Outlook: The Ensuring Access to Abortion Act will now move to the Senate for consideration, where it is highly unlikely to garner the necessary support of 10 Republican Senators to pass out of the chamber. In the meantime, measures have been introduced in Oklahoma and Texas to attach liability to those who “aid and abet” others in violating their states’ respective abortion laws, including companies.