Roe v Wade is Overturned, Now What? - American Society of Employers - Anthony Kaylin

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Roe v Wade is Overturned, Now What?

Last Friday, the Supreme Court overturned the constitutional right to abortion decided in an earlier Supreme Court case in 1973 called Roe v. Wade. In that case, the U.S. Supreme Court struck down a Texas statute banning abortion, effectively legalizing the procedure across the United States. In Dobbs v. Jackson Women’s Health Organization, No. 19-1392 (June 24, 2022), the Supreme Court ruled that Mississippi could ban most abortions after 15 weeks of pregnancy, overturning Roe v. Wade.

With this final decision, 26 states have laws or constitutional amendments that take effect immediately or as soon as possible to ban abortion (or what is called a trigger law).  In addition, Florida, Indiana, Montana, and Nebraska may likely ban abortion as soon as possible without federal protections. 16 states and the District of Columbia have laws that protect the right to abortion.

Michigan employers at this time do not have to do anything.  Michigan does have a Pre-Roe ban, a 1931 law which is one of the most restrictive and allows for no exceptions, even for rape and incest making it felony in the state.  However, a lawsuit was filed in the Michigan Court of Claims questioning the legality of the law.  The Court of Claims Judge issued an injunction staying the law until the case is heard and decided on the merits.  Therefore, Michigan employers can stand pat right now.

There is also a movement to get a law that would overturn the 1931 law on the November ballot, which would need 425,000 signatures by July 11th.  Organizers say they are on track for that date with the required signatures.

As for policies and practices, Michigan employers can wait to change their policies and practices.  However, if the Pre-Roe law becomes live for any reason or if they have employees in other states that ban abortion, Michigan employers will have to think what the benefit packages should look like.

Further, employers will have to review contraceptive costs as well.  Although covered by healthcare policies now, some states will likely pass laws prohibiting types of contraceptives that act after conception, for example the IUD, birth control shots, and the morning-after pill.  Others may ban contraceptives entirely.  States could also ban vasectomies and other birth control that men could take. Moreover, some states could ban prescriptions from being shipped into the state.  Some states have proposed laws that would prohibit shipping abortifacient drugs to employees or impose liability on those who assist with travel arrangements.   

ERISA, under these circumstances, arguably would not override state laws that only have an indirect impact on ERISA plans. Thus, employers who would pay for their employees to go to another state for an abortion could be potentially subject to criminal actions in furtherance of a crime.  In addition, the use of HSAs to assist the payment of costs may not be a tax-free event because Section 213(d) of the IRS code generally excludes amounts expended for illegal operations or treatments.

The takeaway is that HR needs to be proactive and consult with their legal counsel regarding whether they could face potential liability based on services and benefits they currently offer and any additional benefits they may offer (like travel).  This liability may include criminal penalties such as aiding and abetting a crime, and it may extend to the person(s) who authorized the policy and benefits to support abortion.


Source:  Jackson Lewis 6/24/22. Crains Detroit Business, 6/24/22


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