After the Supreme Court’s annulment decision Roe v. Calf, Several big-name companies including Microsoft, Nike and Tesla have announced plans to help employees living in places where abortion is banned travel abroad to have the procedure.
But how that might actually work and what pitfalls employers and employees might encounter remains to be seen.
“I think a lot of employers are responding to that Dobbs decision to make these very public statements that they will offer travel concessions for abortions,” said Bethany Corbin, senior counsel at Nixon Gwilt Law, a health law firm.
“A lot of them haven’t operationalized that yet,” says Corbin. “They’re still working on how that works in practice.”
Some employees may be able to go through a company’s insurer
While it’s still early days, experts say some potential options could be taking shape soon. For example, if the company has an employer-sponsored health insurance plan, abortion-related travel allowances could simply be included in coverage and administered through an existing plan.
“You go to your employer or the insurance company that hired you and you say, ‘I want to have an abortion.’ That includes traveling to another state,” says Robert Field, professor of health management and policy at Drexel University.
The main benefit of this approach is that “it really protects the privacy of the employee,” says Corbin, adding that patient data is usually covered by the Health Insurance Portability and Accountability Act or HIPAA, a Federal law aimed at preventing the disclosure of sensitive patient health information.
Others may be reimbursed directly by an employer
Another option is to provide additional reimbursement for abortion-related travel that is processed through an employer rather than a company’s insurer.
“If it’s a low-paying job, employers probably have to give the money first because the patient couldn’t pay for it herself, and then claim a refund and then wait six weeks for the refund,” says Sharona Hoffman, Professor of Law and Bioethics at Case Western Reserve University.
“It could be some kind of cash advance. It could be a means of transportation,” she says.
However, in this scenario, the employer would collect medical information from the employee. And that raises concerns.
“This data would not be covered by HIPAA,” says Corbin. HIPAA provides individual penalties of up to $50,000 for each unauthorized disclosure of private medical information. For example, a corporate human resources employee who knowingly or negligently discloses that an employee desires an abortion would not be subject to legal sanctions.
Then there’s the potential deterrent effect: If an employee admits to seeking an abortion, the company’s knowledge of it could serve as “subliminal bias” in making staffing decisions like raises, promotions or firings, Corbin says.
Or they go through an external provider
Another model that could be used is for companies to contract with an outside provider such as Planned Parenthood. This outside provider would then send an anonymous bill to employers for abortion services.
“It adds a bit of separation between the employer and the medical services that are being provided,” says Corbin.
One way to look at employers who offer a travel allowance for abortion services is to look at it in the context of other medical procedures, Field says.
“Some plans involve flying people to the best medical providers, such as the Mayo Clinic, for specialized surgery,” he notes. “You can compare this to a regular medical procedure, which requires travel to get to the appropriate provider.”
Offering such services could be a recruitment advantage
Hoffman of Case Western Reserve University says that despite the initial cost of offering travel for an abortion, employers could save money in the long run.
“It’s certainly cheaper than paying for prenatal care and child birth and then supporting the child for 26 years,” says Hoffman. “So employers could do a cost-benefit analysis and say if the woman really doesn’t want a child, it’s cheaper for us too.”
Offering out-of-state travel for abortion services could also prove to be a recruiting advantage in a tight job market, Field says.
“It’s going to apply to younger workers,” he says, noting that they’re “the kind of people who want a lot of companies, and especially the kind of people who want high-tech companies.”
But companies could also face a backlash
Nevertheless, experts agree that there are political sensitivities to getting involved in the abortion debate.
“Not everyone who is a member of this workforce will have the same political beliefs,” notes Corbin.
In a state like Texas, where the law authorizes citizens to sue after about the sixth week of pregnancy to prevent “assisting” an abortion, any company providing such services to employees working there could be legally exposed, he said she says.
An employee opposed to an abortion could become a whistleblower, who could then contact law enforcement with information about a company’s travel services policy for the procedure.
“It’s going to be a real challenge for employers,” says Field. We’ve already seen the spate of litigation from the Dobbs Decision starts to flow in and that’s one of the main problems that will arise.”
“It’s a legal risk for companies,” he says.
“The advantage of being a larger company is that they have the funds for legal costs. A smaller company will have a harder time doing that.”