The May 2, 2022 leaked draft showed that the majority of the justices had backed overturning the 1973 Roe v Wade decision that legalized abortion nationwide. At the time, this raised fears among advocates about how willing employers were to fight to protect their workplace abortion coverage.
Corporations are “not an incredibly reliable and consistent support on any one issue,” Noreen Farrell, civil rights attorney and executive director of Equal Rights Advocates, said a year ago. “It’s important to engage corporations where we can … but we can’t rely on corporations for our fundamental constitutional rights or our economic empowerment.”
Nearly two months after last year’s leak, the court in a 6-to-3 decision made it official by abolishing the right to an abortion with Justice Samuel A. Alito Jr. writing for the majority that “Roe was egregiously wrong from the start,” The New York Times reported last year.
In their joined dissent, Justices Stephen G. Breyer, Sonia Sotomayor and Elena Kagan portended the huge challenges ahead when they noted that the majority had issued “a decision greenlighting even total abortion bans.”
“With sorrow—for this court, but more, for the many millions of American women who have today lost a fundamental constitutional protection—we dissent,” the justices concluded. Right after that June 24 ruling, abortion bans in at least eight states soon became effective and more states would enact anti-abortion laws and restrictions, The New York Times reported.
Fast-forward to now as employers grapple with no definitive blueprint on how to best support their workers. Competing forces have been battling in the courts over the last year as Republican-led state legislators rush to pass laws further restricting abortion and further complicating the lives of employers and their human resources teams.
Many employers have been considering widening their health plans to include mifepristone, the abortion drug, to make it easier for their employees to get. Now many are pausing those plans as they wait and see how the Supreme Court contends with a new legal challenge, an employee benefits attorney told Bloomberg. Katie Bjornstad Amin, a principal with Groom Law Group, tells Bloomberg that employers were considering adding mifepristone as a pharmacy benefit as well as covering it under their medical plan. As a pharmacy benefit, employees would be able to access the drug via telemedicine, she said.
“But that was before an April 7 order by the US District Court for the Northern District of Texas that sought to block the drug’s sale by overturning its FDA approval,” Bloomberg reports. “That decision, along with an April 12 ruling by the US Court of Appeals for the Fifth Circuit that allowed the drug to continue to be sold but blocked it from being sold through the mail, appears to have put those plans on hold, Amin said.”
The Supreme Court ruled April 21 to permit mifepristone to remain widely available after the Justice Department and Danco Laboratories, the manufacturer of the brand version of mifepristone, Mifeprex, asked the justices to intervene, NBC News reports. For now, that means women can still get mifepristone by mail, but the case will head back to the Fifth Circuit on May 17, further highlighting the ongoing uncertainty for employers.
Employers may have plans that pay for their employees to travel to obtain mifepristone should they live in a state that restricts abortions. But employers may be very concerned that if they cover it as pharmacy benefit, allowing their employees to access the drug via telemedicine, they could “raise their risk” of facing criminal liability, Amin tells Bloomberg.
“Employers have to be careful how they communicate with their employees,” Dr. Mary Jacobson, an obstetrician and gynecologist and chief medical officer at Alpha Medical, a digital women's health services platform, tells Employee Benefit News.
If the company and employee is in state where abortion is illegal, “employers are in a difficult position because they don't want to be viewed as aiding and abetting an employee to seek abortion care,” Jacobson adds. One “excellent option” for the employer is to turn to a third-party firm that specializes in offering abortions services, she says. This can “create an environment, a culture of safety with respect to communication either between the employer and that third party, or enable their employees to go directly to that third party,” Jacobson notes. “This way, the employer doesn't have any access to the specific employee who's seeking their services.”