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Headaches Pile Up For HR Amid End Of Roe v. Wade

The Supreme Court ruling overturning Roe v. Wade last month has created a complicated legal and ethical landscape for employers and human resources leaders.

abortion cancellation ge241d6d30 640Employers acted way in advance of the high court’s May 2 leak of its draft ruling when last year a number companies with employees in states already facing restrictive abortion laws had pledged to pay for their workers to travel out of state to get the procedure done. Despite the legal uncertainties in offering such a benefit, many employers are making this available to their workers, Society For Human Resource Management reports. Ben Conley, an attorney with Chicago-based Seyfarth, said during a June 28 SHRM webcast that these kinds of benefits are being rolled out more widely than what is being reported publicly in the news.

Companies with locations in multiple states have informed staff that those covered by their health insurance plans won’t see a change in services, Conley noted. He points to Justice Brett Kavanaugh, who ruled with the majority to strike down Roe v. Wade, but who noted that a state may not prevent its residents from traveling to another state for abortion services. And with the three liberal justices, along with Chief Justice John Roberts Jr., potentially siding with Kavanaugh on this matter, Conley is betting that any law seeking to bar its residents from interstate travel to get an abortion may be deemed as unconstitutional by the Supreme Court.

Employers should find out if their health insurance plans cover elective abortions, Conley said. While plans may cover non-elective abortions, such as situations where a pregnant woman’s health or life would be in jeopardy if not allowed to undergo the procedure, it may not be the same scenario for procedures where the woman’s health and life are not deemed to be at risk.

Another potential headache is whether plans cover so-called abortifacients, or drugs that induce abortion. This could become complicated as accessing abortifacient drugs via telehealth may not be available in restrictive states that are targeting these drugs, he added. “Employers need to remain nimble,” Conley said. And it may not stop at restricting and banning abortion. Many see the ruling as an opening for the Supreme Court to go after more rights, Employee Benefit News reports.

“The folks that oppose abortion are also coming for contraception, sex education, trans rights and more,” said Rachel Fey, vice president of public policy at Power to Decide, a nonpartisan organization that advocates for the right to prevent unplanned pregnancy. “And the barriers and assault on contraceptive access have already been happening for quite some time, particularly for people who are struggling to make ends meet.”

Employers’ healthcare plans also may fall short of blunting the negative impact from states’ abortion restrictions. The Affordable Care Act does requires health plans to cover at least one method from the 18 FDA-approved categories of birth control. The ACA also mandates that an exceptions process be allowed for specific birth control options not on the FDA list and that these exceptions processes have to be “accessible, transparent and sufficiently expedient.”

“We looked at the largest plans in terms of covered lives across the country,” Fey said. “Some plans did reference an exceptions process but didn't tell you where to go to find it. Others referred to a prior authorization process, which does not meet the requirements of the ACA, which states the attending provider is one who decides what particular method is needed. Others had confusing information or no information at all.”

Lack of paid leave for the vast majority of U.S. workers further complicates how much employers can do and how realistic it is for employees to get an abortion, The American Prospect reports. A few large companies announced they would give their workers who have no access to abortion services in their states up to $4,000 for travel expenses.

The reality, however, for most employees is that “a large portion of them don’t have paid medical leave, and therefore may have to choose between an abortion and their job,” the publication notes.

Josephine Kalipeni, executive director at Family Values @ Work, which advocates for family-friendly workplace policies, adds that “most workers in this country work for smaller employers who cannot afford to pay on their own for paid family and medical leave, let alone a travel benefit.”

Employers in states that restrict or completely ban abortions need to tread carefully, The Washington Post reports.

There were 13 states as of the end of June with trigger laws that immediately criminalized abortion, or criminalize it 30 days after the Roe ruling. And other states are expected to pass their own abortion restrictions/bans soon. This could mean employers providing abortion benefits for their workers in these states could face accusations of aiding and abetting criminal activity. For employers providing abortions benefits to their employees this means “trying to figure out what’s safest for the employer while trying to help employees out,” says Robert Ellerbrock, a partner at FisherBroyles.

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