On June 24, 2022, the US Supreme Court overturned Roe v. Wade, stating there is no constitutional right to abortion; this returned legislative power on abortion to the states.
What is the status of all 50 states with regard to abortion?
This is the current status of each state (please keep in mind this is subject to change):
|Banned||Ban has been blocked*||Restricted to a certain term||No restrictions|
*This means that a local judge has blocked a trigger ban and a process must take place to determine what happens next for the state law.
Is inter-state abortion travel illegal or restricted?
No. Americans are permitted to travel to other states (or countries) to receive abortion care. Justice Brett Kavanaugh publicly stated those who travel to neighboring states will be protected by the constitutional right to interstate travel. However, there is no guarantee that state governing bodies won’t try and restrict this.
In Texas and Oklahoma, state law allows private citizens to sue anyone who “aids or abets” an abortion of a state resident even if the abortion takes place in a state where abortion is legal. The person seeking (or having) the abortion cannot be sued.
How can a company that operates (or employs workers) in a banned state assist abortion-seeking employees?
There are several avenues an employer can use to support employee access to abortion. The following is a list of options; click into each for more details:
- Health plans
- Abortion Riders
- PTO and sick policies
- Direct cost coverage
- Broad reimbursement arrangement
- Contract directly with a provider
What about the abortion pill?
The abortion pill (also known as Plan C or medical abortion) is used in over 50 percent of all abortions across the country. Policy around the abortion pill is aligned with policy around the abortion procedure: in banned states, both the pill and procedure are banned; in states with term limits, the same limits apply to the procedure and the pill.
While it is currently illegal to ship the pill to a banned state, President Biden, the DOJ, and HHS have stated they plan to make the pill available to all Americans.
|NOTE: The abortion pill is sometimes confused with the morning-after pill (also known as emergency contraception or Plan B); these are different medications. The morning-after pill remains legal in all 50 states and is sold over the counter. |
See this guide on the difference between these pills.
Are fertility treatments, clinics, and benefits at risk?
As of August 2022, no.
Fertility clinics offer a procedure known as in vitro fertilization (IVF) in which embryos are created in a lab and sometimes frozen—depending on state law, these embryos may be subject to restrictions and/or protections. Some have speculated that under new laws, it may be illegal in certain states to freeze or discard embryos.
South Carolina and Alabama have specifically exempted IVF from their abortion bans, so fertility treatments and benefits will not be affected in those states, but other states haven’t made any clear exemptions—they also haven’t taken any action to stop the work being done in these clinics, so the future of fertility treatments is unclear.
If you offer your employees fertility benefits, be sure to stay apprised of new legislation or action in your state.
Are employees required to disclose to employers if they are seeking or having an abortion?
No. Employees can choose what information they share with their employers about any type of medical care. However, if the employee is seeking coverage for the abortion from the place of employment, certain plans and health reimbursement arrangements (like FSAs and HRAs) require that the employee provide “substantiation” (documentation and/or receipts) in order to be covered or reimbursed.
Can a company/employer be exposed to liability if assisting employee inter-state abortion travel?
Possibly. This isn’t clear yet, but risks are low. See here for more details.
Can an employee seeking an abortion (or who has had an abortion) be discriminated against at work?
Not according to the law. The Equal Employment Opportunity Commission (EEOC) states that Title VII protects women who have had an abortion (or who are contemplating having an abortion) from being fired and from any adverse employment actions.
Employers cannot pressure employees to have an abortion (or not to have one) and cannot use tactics like promising paths to career advancement, better assignments, or the promise of job retention in order to sway her decision.
Are abortion procedure or pill costs tax-deductible as medical expenses?
Only for legal abortions (in states where the procedure/pill is dispensed legally). According to the IRS, abortions are considered medical care.
Do employees have the right to discuss their opinions on abortion at work?
It’s complicated. Both public and private employers are able to limit certain speech in the workplace–but not all.
Any restrictions guidelines surrounding clothing, pins, posters, should be clearly outlined and consistent within an employee handbook.