What Employers Should Know About Providing Abortion Benefits

Are there legal ramifications for employers providing abortion benefits? Here is what we know so far.

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On June 17, 2022, the Supreme Court voted 5-3 to reverse Roe vs. Wade, thus ending 50 years of federal support for abortion access and reproductive rights in the United States. The decision has reverberated throughout the nation, and businesses are not immune.

For HR managers and small business owners, the reversal affects employee healthcare access, insurance plans, and potential benefits packages. Including reproductive health as a part of your compensation package can involve legal complications depending on where your employees reside and work.

Yet omitting abortion services as part of your group health plan can also drive away top talent. Other companies are openly offering reproductive health services. Some examples include Yelp, Citi, Apple, Lyft, Uber, Bumble, and Match. Salesforce has even gone so far as to offer to relocate employees living in states that restrict abortion access.

Legal abortion benefits post-Roe

While it’s important to encourage an open-door policy, you should also provide options in which an employee does not need to explain their medical expenses or paid-time-off request.

With federal protections for abortion access over, companies must navigate individual state laws to determine whether or not legal abortion benefits are even an option. In addition, it’s likely that your current employee health plan will change. Not only will abortion services potentially be restricted or removed, but coverage of certain medications that could cause abortions may also be at risk.

Methotrexate, a medication often prescribed to patients with rheumatoid arthritis, lupus, and other chronic illnesses, could be on the chopping block. Pharmacists are unwilling to fill these prescriptions, especially for women, since the drug can terminate pregnancies.

Organizations looking to provide abortion benefits may need to get creative. For example, rather than offer upfront abortion care, employers can:

  • Extend a lodging and travel benefit that won’t be tracked
  • Promote additional PTO policies
  • Provide telemedicine for access to women’s health

In many cases, women employees may not feel safe explaining why they need to take time off of work. This is especially true in states where abortion is banned or restricted. While it’s important to encourage an open-door policy, you should also provide options in which an employee does not need to explain their medical expenses or paid-time-off request.

Current abortion restrictions by state

Whether or not an abortion procedure is legal in certain states often depends on when the fetus is defined as “viable.” If a pregnancy becomes viable, this means that the fetus can survive outside of the uterus, albeit with medical assistance. Usually, a fetus reaches viability within 24-26 weeks, but each pregnancy is different.

States with a complete or near-complete abortion ban

  • Alabama – Abortion is banned except to save a pregnant person’s life or physical health. You can currently have a safe, legal abortion in another state.
  • Arkansas – Abortion is completely banned, except to save the pregnant person’s life. It is legal to travel out of state for an abortion.
  • Florida – Abortion is banned after 15 weeks, unless to save the life of the pregnant person or if the fetus will not survive. A new law could further limit this ban to 14 weeks, 6 days. You can go to another state for a safe, legal abortion.
  • Mississippi – Abortion is completely banned unless to save the pregnant person’s life, protect their physical health, or if the fetus will suffer from significant issues. You can travel to another state.
  • Missouri – Abortion is banned unless the pregnant person’s life or physical health is in danger. You can go to another state to receive an abortion.
  • Oklahoma – The only exception to the abortion ban is if the pregnant person’s life is in danger. You can travel for abortion in another state.
  • South Dakota – Abortion is completely banned, except to save the life of the pregnant person. It is legal to go to another state for an abortion.
  • Texas – The only exceptions to the abortion ban are if the pregnant person will die from giving birth or have severe complications to their physical health. You can technically leave the state for a legal abortion, but private citizens can sue anyone who helps that individual get an abortion.

States enforcing comprehensive abortion restrictions

  • Arizona – Abortion is legal before viability, but a pregnant person must visit the clinic for an in-person counseling session and wait 24 hours before the procedure. The new law would ban abortion after 14 weeks, 6 days, unless the person could die from continuing the pregnancy. You can get an abortion out of state.
  • Ohio – You can have an abortion before 6 weeks, or if the pregnancy could endanger the person’s life or physical health. You also need to have a counseling appointment with your abortion services provider and wait 24 hours before the procedure. You can travel out of state.
  • South Carolina – Abortion is only legal to save a person’s life. You can legally go to another state for the procedure.
  • Tennessee – Abortion is legal before 6 weeks, and a pregnant person seeking an abortion must attend counseling and wait 48 hours before the procedure. You can get a legal abortion out of state.

States that may begin enforcing new abortion restrictions

These states still allow some forms of abortion access. Abortion in these states is legal if:

  • Georgia – Before 21 weeks, 6 days, to save a person’s life, preserve their physical health, or if the fetus will not survive. You must seek counseling with your abortion provider and wait 24 hours before scheduling the procedure. You can visit another state for an abortion.
  • Idaho – Before viability or to save a person’s life. You must attend in-person counseling and wait 24 hours before the procedure. You can travel out of state to seek an abortion.
  • Iowa – Before 21 weeks, 6 days, to save the pregnant person’s life or protect their health. You must attend in-person counseling and wait 24 hours. You can travel for an abortion.
  • Kentucky – Before 21 weeks, 6 days, to save a pregnant person’s life or prevent risk to their physical health. In-person counseling and a 24-hour wait period are required. You can go out of state for access.
  • Louisiana – Before 21 weeks, 6 days, to save a pregnant person’s life, physical health, or if the fetus is not expected to survive the pregnancy. You must attend in-person counseling with your abortion provider and wait 72 hours. You can travel for abortion access.
  • Michigan – Before viability or to save a pregnant person’s life. You must get counseling and wait 24 hours before receiving an abortion. You can travel to another state for access.
  • North Carolina – Before viability, to save a pregnant person’s life or physical health. You must get counseling and wait 72 hours. You can currently travel to another state for a safe legal abortion.
  • North Dakota – Before 21 weeks, 6 days, to save a person’s life or protect their physical health. You must get counseling and wait 24 hours before seeking a medical abortion. You can travel for reproductive rights.
  • Utah – Before 18 weeks, to save a pregnant person’s life, their physical health, if the pregnancy is due to rape or incest, or if the fetus will not survive the pregnancy. You must attend counseling and wait 72 hours before receiving an abortion.
  • West Virginia – Before 21 weeks, 6 days, to save a person’s life, physical health, or if the fetus will not survive pregnancy. You must attend a counseling appointment and wait 24 hours before receiving the procedure. You can travel out of state for reproductive rights.
  • Wisconsin – Before 21 weeks, 6 days, to save the pregnant person’s life or physical health. Before receiving an abortion, the pregnant person must attend in-person counseling and wait 24 hours. You can travel for a medical abortion.
  • Wyoming – Before liability, to save someone’s life or general health. Whether further restrictions due to state laws will go into effect is yet to be seen. Travel for abortion is permitted.

States with few or no restrictions on abortions

Abortion in these states is legal if:

  • Alaska – There are no restrictions on abortion.
  • California – Before viability, to save a person’s life or general health. You can go to another state for the procedure if you wish.
  • Colorado – There are no limits or restrictions on reproductive rights.
  • Connecticut – Before viability, to save a person’s life or protect their health. You can go to another state for abortion access.
  • Delaware – Before viability, to save the pregnant person’s life, to protect their health, or if the fetus will not survive. You can travel to another state for sage abortion care.
  • District of Columbia – There are no abortion restrictions or limits.
  • Hawaii – Before viability, to save a person’s life, or protect their general health. You can travel to another state for abortion access.
  • Illinois – Before viability, to save a person’s life or protect their health. You can travel to another state for safe abortion care.
  • Indiana – Before 21 weeks, 6 days, to save a person’s life, or preserve their health. You can travel out of state for health care.
  • Kansas – Before 21 weeks, 6 days, to save the pregnant person’s life or preserve their health. You can go out of state for reproductive health care.
  • Maine – Before viability, to save the pregnant person’s life, or to protect their health. You can travel out of state for an abortion.
  • Maryland – Before viability, to save the pregnant person’s life, to protect their general health, or if the fetus will suffer from medical issues during the pregnancy. You can travel for abortion care.
  • Massachusetts – Before 23 weeks, 6 days, to save the pregnant person’s life or physical health. You can travel to another state for an abortion.
  • Minnesota – Before viability, to save someone’s life, or protect their physical health. You can travel out of state for abortion care.
  • Montana – Before viability, to save someone’s life, or protect their physical health. You can go out of state for an abortion procedure.
  • Nebraska – Before 21 weeks, 6 days, to save the pregnant person’s life, or protect their health. You can go out of state for abortion services.
  • Nevada – Before 25 weeks, 6 days, to save someone’s life or protect their general health. You can travel out of state.
  • New Hampshire – Before 23 weeks, 6 days, to save someone’s life, if the fetus is not expected to survive the pregnancy, or to protect someone’s physical health. You can travel out of state for the procedure.
  • New Jersey – Abortion is legal in New Jersey.
  • New Mexico – There are no abortion restrictions.
  • New York – Before viability, to save someone’s life or protect their general health. You can travel out of state.
  • Oregon – There is no ban or limitation on abortion.
  • Pennsylvania – Before 23 weeks, 6 days, or to save someone’s life or physical health. You can get an abortion out of state.
  • Rhode Island – Legal before viability or to save someone’s life. You can travel for an out-of-state abortion.
  • Vermont – Abortion access is completely legal, without limitation.
  • Virginia – Legal before 26 weeks, 6 days, or to save a person’s life or general health. You may travel out of state for an abortion procedure.
  • Washington – Legal before viability, to save a person’s life, or preserve their general health. Individuals may travel outside the state to seek an abortion.

Abortion Finder offers detailed state-by-state guides for more information.

Additional legal considerations

The reversal of Roe vs. Wade and navigating state-specific abortion bans is only part of the challenge. Employers should also keep in mind that:

  • While funding abortion benefits under a self-funded Employee Retirement Income Security Act (ERISA) group health plan can add a layer of security for the company in case of a civil lawsuit, many lawyers recommend staying compliant with state laws.
  • The Affordable Care Act (ACA) does not ban or require health insurance plans to cover abortion. However, 25 states have passed regulations against abortion coverage.
  • Under Title VII of the 1964 Civil Rights Act, employers cannot fire a woman for having an abortion or for even considering abortion.
  • As abortion is now illegal in some states, abortion-related travel expenses are unlikely to be considered tax-free by the IRS.
  • Fertility benefits may also be affected depending on the state and how the “start of life” is defined.
  • Many insurers may choose to not offer benefits where abortions are banned.
  • Consider offering a health savings account (HSA) for health-related travel reimbursements, as individuals, not companies, are responsible for record-keeping.

Ultimately, having a legal team review your reproductive health benefits is critical to reducing risks to the company and the employee.

having a legal team review your reproductive health benefits is critical to reducing risks to the company and the employee.

Types of abortion and reproductive health benefits

There are a few different types of abortion benefits that your employee healthcare plan may or may not cover:

  • Access to abortion pills, also known as medical abortion
  • Surgical abortion

If your insurance coverage does not extend to abortion, either due to state complications or another reason, and you wish to support employees, you can do so through:

  • A “no questions asked” travel fund for abortion travel benefits
  • Providing more PTO days
  • Helping employees relocate to a state with safe abortion care

In addition to abortion and reproductive health benefits, offering maternity leave and childcare benefits can also support employees who carry a pregnancy to term. This includes those who are forced to give birth due to abortion restrictions in their state.

More abortion care resources

There are several abortion care resources that employers and their staff can use to stay on top of the ever-changing regulations. The most prominent include:

  • Planned Parenthood – The website offers a wealth of information about reproductive rights, abortion laws, birth control, and other related health care services.
  • Abortion Finder – This is to go-to place for state-specific guides and information about abortion providers.
  • The Abortion Care Network – This organization lists abortion and reproductive health care providers.

Get a pulse on employee well-being

Creating a safe environment for employees to tap into their healthcare needs is essential for a productive workplace. But it can also foster employee loyalty and reduce turnover.

At the same time, before deciding on benefits, you need to know your employees.

Get guidance on employee wellbeing in our free People Operation’s Guide and Checklist for Employee Well-being.

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