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Abortion travel benefits expand despite prosecution threat

A legal battle between employers offering abortion travel benefits and states that ban abortion may be brewing.

In the wake of the Roe v. Wade reversal, Jack Altman, CEO of Lattice, wrote a memo to his 700 employees stating that the firm will reimburse employees for travel "to access essential medical services that are banned in their home state." But it's an abortion travel benefit that may come with risks. 

Lattice, an HR software vendor, is based in San Francisco, Calif., a state where abortion procedures are legal. But about "10% of our current employees live in states with trigger bans or states that have restrictive legislation pending," a spokeswoman wrote. The company didn't want to identify those states where employees live, calling it protected information. 

There may be valid legal reasons for companies like Lattice to keep the states where they have employees private, given the ripple effect of the Supreme Court's decision. For example, a group of Texas lawmakers want to see criminal prosecution of executives at firms that pay for an abortion travel benefit out of Texas.  

Zeroing in on abortion travel benefits

Texas State Rep. Briscoe Cain, a Republican in Deer Park, along with 13 other state lawmakers, will introduce anti-abortion enforcement legislation in the next legislative session. Their bill aims to put corporate directors and officers at risk of "felony criminal prosecution if they use corporate resources to pay for abortions or reimburse abortion-related expenses."

The threats of prosecution from lawmakers "so far have been vague and not backed up by state law," said Noreen Farrell, civil rights attorney and executive director of Equal Rights Advocates, a law firm in San Francisco.

The next wave for corporations is not going to just be on the defense; it will be on the offense.
Noreen FarrellCivil rights attorney; executive director, Equal Right Advocates

And they aren't stopping companies from extending such services to employees, including business goliaths, such as Austin-based Tesla, as well as Amazon, Microsoft, Salesforce and Starbucks. They are not without the power to fight back. They employ thousands of people in states with abortion bans and spend millions on lobbying lawmakers, legal experts noted. 

"The next wave for corporations is not going to just be on the defense; it will be on the offense," Farrell said.

For now, however, no states ban employers from covering travel costs to obtain an abortion, Farrell said.

Lawmakers in abortion-banning states may also face an obstacle in Brett Kavanaugh's concurring opinion, Farrell added. The associate justice wrote that a state cannot bar someone from traveling to another state to obtain an abortion "based on the constitutional right to interstate travel." 

Still, "states can determine what is criminal within their state lines, and we expect that to be very much a strategy to protect abortion bans in certain states," Farrell said.

Employers might find cover for abortion reimbursements in federal law regulating employee benefits, such as the Employee Retirement Income Security Act of 1974 (ERISA), she said. ERISA prohibits states from adopting requirements that relate to employer-sponsored health plans. Employers might use other workarounds to protect themselves, such as characterizing reimbursements for early pregnancy leave or as providing general travel costs for employees, Farrell said. 

Some take wait-and-see approach

Employers will need to examine the issue methodically, said labor and employment attorney Michael Elkins, partner and founder of MLE Law in Fort Lauderdale, Fla.

Employers have to determine whether a state has a "provision that has penalties for assisting somebody getting an abortion," he said. And if that's the case, a company will also have to see what constitutes assistance and how the state intends to enforce it, he said. 

Elkins said that employers may try to shield themselves, such as categorizing an abortion travel benefit as a general medical expense, but may still face problems in an aggressive state. Such a state may test the bounds of the employer's abortion travel benefit by noting that the employer didn't offer it until Roe v. Wade was struck down, he said. 

Large employers haven't been shy about offering the abortion travel benefit, "but I'm not sure those are the employers these local jurisdictions will go after," Elkins said. 

A survey of HR managers and business executives Gartner conducted late last month before the court's ruling found that 60% of large and medium-sized employers would not be offering any new benefits, which the research firms believes is an indication that HR managers are waiting to see how other businesses react.  

HR departments want "to see what their colleagues are doing," said Crystal Styron, principal in the Gartner HR practice.

Lattice is one company that has decided not to wait. In the employee memo, Altman wrote that his family just welcomed a second child, "and like so many other families, our road to reproduction was deeply personal."

"The decisions we've made along the way have been some of the most nuanced and private decisions we've made in our lives; and we feel strongly that's the way it should be. It's about women's bodies, health and agency -- the idea that these choices could be made by the government instead of between families and their doctors is extremely unsettling for many of us," Altman wrote.

Patrick Thibodeau covers HCM and ERP technologies for TechTarget. He's worked for more than two decades as an enterprise IT reporter.

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