Washington Lawyer - November/December 2022 - 20

FEATURE
RISKY
ROAD
AHEAD
Employment Law
Implications of Dobbs
By Tracy Schorn
W
hen the U.S. Supreme
Court decided Dobbs v.
Jackson Women's Health Organization
in June, holding that access to abortion
is not a constitutionally protected right, it opened
a Pandora's box of privacy and insurance issues in
the workplace. Though the legal horizon is foggy,
employment attorneys offer their perspectives on
issues that are arising in terms of reproductive rights.
EMPLOYEE HEALTH BENEFITS
For the majority of women, reproductive health care is coupled with
their own workplace or that of their partner or spouse. In 2020 approximately
60 million women ages 19 to 64 received their health coverage
from employer-sponsored insurance, according to the Kaiser Family
Foundation. After Dobbs, how do companies with U.S. and global workforces
offer women the same health care across the board when access
to abortion is legal in some states and criminalized in others?
Since Dobbs, corporations like Amazon, Tesla, Netflix, Dick's Sporting
Goods, and others have publicly declared that they will offer abortion
travel benefits to employees. How that will play out remains to be seen,
but now employers are confronted with some thorny questions. Must
an employee disclose sensitive health information to her employer to
take advantage of such benefits? Could such benefits be broadened
to include any sort of medical procedure needed out of state? Does
offering reproductive health care make the employer vulnerable to
criminal prosecution?
20 WASHINGTON LAWYER * NOVEMBER/DECEMBER 2022
" It's such a morass of state and federal conflicting laws and different fields
that don't normally come together, " says employment lawyer Conor
Ahern, senior counsel at Alan Lescht & Associates, P.C. " You don't usually
think of an employment benefit being offered as facilitating a crime. "
Such tensions converged in July when a coalition of Texas state legislators,
the Texas Freedom Caucus, threatened Sidley Austin LLP attorneys
with criminal prosecution and disbarment if they were found to facilitate
access to abortion, even in other states. Sidley, an international firm with
offices in Dallas and Houston, had announced travel reimbursement
policies for those seeking abortions.
The caucus is backed by the Texas Heartbeat Act, currently being challenged
in court, which allows individuals to file civil actions against any
person or entity that " knowingly engages in conduct that aids or abets
the performance or inducement of an abortion, including paying for or
reimbursing the costs of an abortion through insurance or otherwise. "
The law provides for statutory damages " in an amount of not less than
$10,000 for each abortion . . . induced. "
Ahern notes that such threats could get " very messy " for organizations.
While some employers " are trying to do right " by their workforce, they
may withdraw such benefits " if they face significant liability, " he says.
Danger aside, there are also the logistics of how such leave is offered,
says Jessica Summers, principal at Paley Rothman. If abortion isn't permitted
in your state, " are you actually going to pay for the cost of the
procedure that may not be covered under your health insurance plan
anymore? " she asks.
" Leave is another really big issue, " says Summers. " The greatest impact is
going to be on employees who are hourly, [or] low-income workers who
Getty Images/Jose Luis Pelaez Inc
Washington Lawyer - November/December 2022

Table of Contents for the Digital Edition of Washington Lawyer - November/December 2022
