After overturning the decision of the Supreme Court Roe v. Wade, several big-name companies like Microsoft, Nike and Tesla have announced plans to help employees who live in countries where abortion is restricted to travel overseas to undergo the procedure.
But how it might actually work, and what pitfalls employers and employees might encounter, remains to be seen.
“I think many employers in response to Dobbs The decision is making these very public statements that they will provide abortion travel benefits,” says Bethany Corbin, senior counsel at Nixon Gwilt Law, a firm specializing in health care law.
“A lot of them haven’t operationalized that yet,” says Corbin. “They’re still working out how this actually works in practice.”
Some employees may be able to go through a company’s insurer
While it’s still early days, experts say some possible options may soon take shape. If the company has an employer-sponsored medical plan, for example, abortion-related travel benefits can simply be folded into the coverage and administered through an existing plan.
“You go to your employer or the insurance company that they have and you say, ‘I want to have an abortion.’ And part of that involves 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 employee’s privacy,” says Corbin, adding that patient data under such a health plan is typically 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 carried out by the employer rather than a company insurer.
“If it’s a low-wage job, apparently employers might have to give the money first because the patient couldn’t pay it themselves and then claim reimbursement and then wait six weeks for the reimbursement to go through ,” says Sharona Hoffman. , professor of law and bioethics at Case Western Reserve University.
“It could be cash advances of some kind. It could be transportation,” she says.
Under this scenario, however, the employer would collect medical records from the employee. And this raises concerns.
“This data would not be covered by HIPAA,” says Corbin. HIPAA provides for individual fines of up to $50,000 for each unauthorized disclosure of private medical records. For example, then, an employee in a company’s human resources department who intentionally or negligently discovers that an employee is seeking an abortion will not be subject to legal penalties.
Then there’s the potential chilling effect: If an employee admits to seeking an abortion, the company’s knowledge of it could serve as “a fundamental bias” when making personnel decisions, such as pay raises, promotions or who to fire, Corbin says.
Or they may go through an external provider
Another model that can 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 the employers for the abortion services.
“It adds a bit of separation between the employer and the medical services that are provided,” says Corbin.
One way to look at employers offering a travel benefit for abortion services is to look at it in the context of other medical procedures, Field says.
“Some plans will send people to the top medical provider, say, the Mayo Clinic, to have a specialized surgery,” he notes. “You can analogize this to a regular medical procedure that requires travel to get to the right provider.”
Providing such services can be a recruiting advantage
Case Western Reserve University’s Hoffman says that despite the initial cost of providing travel for an abortion, it can save employers money in the long run.
“It’s certainly cheaper than paying for pregnancy and childbirth care and then supporting the child for 26 years,” says Hoffman. “So employers can do a cost-benefit analysis and say if the woman really doesn’t want to have a baby, it’s cheaper for us too.”
Offering travel for out-of-state abortion services can also prove to be a recruiting advantage in a tight job market, Field says.
“It will apply to younger workers,” he says, noting that they are “the kind of people that a lot of companies want to have, and especially the kind of people that high-tech companies want to have.”
But companies could also face a backlash
Still, there are political sensitivities to wading into the abortion debate, experts agree.
“Not everyone who is a member of that workforce is going to have the same political beliefs,” Corbin notes.
In a state like Texas, where the law empowers citizens to file lawsuits to prevent “aiding and abetting” an abortion after about six weeks of pregnancy, any company that provides such services to employees who work there could be legally exposed, she said.
An employee who opposes abortion can become a whistleblower who can then turn over information to law enforcement about a company’s travel service policy for the procedure.
“It’s going to be really difficult for employers,” Field says. We have already seen the flood of lawsuits from Dobbs the verdict is starting to trickle in, and that’s one of the main issues that will come up.”
“It’s a legal risk for companies,” he says.
“A larger company has the advantage of having resources for legal costs. A smaller company will have a harder time.”