Abortion Outlook Rapidly Changing in States

Leah Shepherd By Leah Shepherd July 7, 2022
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​Employers are watching closely as many states shift their laws governing abortion. A number of state officials and courts acted quickly after the U.S. Supreme Court overturned Roe v. Wade on June 24 in an effort to set their own abortion policies.

Over the next year, employers can expect many changes coming through new case law and new state legislation, so it's important to stay updated on the latest action in your state, experts said.

"We've very much entered an era where the law regarding abortion services will flip flop from administration to administration, Congress to Congress, state legislature to state legislature," said Ben Conley, an attorney with Seyfarth Shaw in Chicago, during a webcast for the Society for Human Resource Management (SHRM).

Some of the changes won't happen right away. "Many state legislatures are not scheduled to reconvene for a couple of months, but that doesn't mean they can't call a special session," Conley noted.

Looking to the near future, "it's expected that 26 states will have laws that will restrict or prohibit or limit abortion services. That's a lot," he added.

U.S. Attorney General Merrick Garland confirmed that states can keep abortion legal within their borders, and states cannot ban reproductive services provided outside their borders.

Bans Take Effect

As of July 1, abortion is legal in 27 states and Washington, D.C., according to the Guttmacher Institute, a New York City-based research and policy organization focused on reproductive health.

Abortion is banned from the point of conception in Alabama, Arkansas, Missouri, Oklahoma and South Dakota. Ohio and South Carolina prohibit abortion after six weeks of pregnancy. A Mississippi law to ban abortion after 20 weeks of pregnancy took effect July 7.

However, shortly after the Supreme Court's ruling, judges in Florida, Kentucky, Louisiana, Tennessee, and Utah temporarily halted their states' abortion bans.

These bans aren't all the same. They "vary in breadth and scope, from prohibiting physicians from performing abortions, restricting access to abortion medication, attaching civil penalties and criminal liability to those who knowingly or unknowingly aid or abet in the termination of pregnancy, to conferring personhood at the time of conception," said Anne Sanchez LaWer, a lawyer with the firm Littler in San Jose, Calif.

Some states had laws restricting abortion before Roe took effect in 1973.

"A lot of those laws were on the books, and there was no attempt to enforce them post-Roe, so they just remained on the books. They're still here, so there's this modicum of uncertainty about this law from 50 years ago that's technically still on the books—does that remain in effect?" Conley said.

On June 28, Wisconsin Gov. Tony Evers and Attorney General Josh Kaul filed a lawsuit to invalidate the state's 1849 abortion ban, which was not enforced while Roe was in effect. 

State laws currently include these restrictions, according to the Guttmacher Institute:

  • 43 states prohibit abortions after a specified point in pregnancy, with some exceptions provided.
  • 33 states require an abortion to be performed by a licensed physician.
  • 19 states require an abortion to be performed in a hospital after a specified point in the pregnancy.
  • 12 states restrict coverage of abortion in private insurance plans, most often limiting coverage only to when the patient's life would be endangered if the pregnancy were carried to term.
  • 18 states require patients to receive counseling before an abortion.
  • 25 states require people to wait a specified period of time, usually 24 hours, before receiving abortion services.

Allowing Access

Women may travel to get abortion services in states that have kept it legal, such as California, New York, Oregon and Washington. Twenty-three state attorneys general recently released a joint statement supporting access to abortion.

Even in places where abortion is legal, some counties have no abortion providers, and some residents lack insurance coverage for abortions and other reproductive care.

Private health insurers will make their own decisions about coverage and network providers based on the states in which they operate. 

"Health insurance providers have long worked with partners across the country to support and promote women's health. We remain committed to working with federal officials, state policymakers, employer customers and local health care leaders to provide coverage options that best meet the local needs, rules and regulations in states and communities across the country," said David Allen, a spokesperson for AHIP, a national association of health insurers.

ERISA Plans

Employers with Employee Retirement Income Security Act (ERISA)-covered health plans must comply with federal law on abortion but don't have to follow state laws.

"Self-insured companies are subject to ERISA rather than state law. This provides broad flexibility in structuring health benefits," said Emily M. Dickens, SHRM's head of government affairs.

If your organization has a self-insured plan, be sure to consider any factors that might preclude ERISA pre-emption.

"Employers should not assume that ERISA pre-emption provides bulletproof protection against all state laws relating to employee benefit plans," LaWer said. "There are several important exceptions that can undermine ERISA pre-emption of state law. … Employer plans that provide medical coverage through the purchase of insurance, rather than self-funding employee medical benefits, are subject to applicable state insurance laws and regulations, which are likely to prohibit coverage for abortion care or other health care services state legislatures may view with disfavor."

Remember that civil law is different from the criminal charges that some states, including Texas and Oklahoma, have proposed using against those who help people receive abortions.

"There is no clear federal case law that deals with ERISA pre-emption of state laws that attempt to impose criminal liability with respect to benefits provided under an ERISA health plan, such as criminal statutes that would penalize persons who aid and abet abortions," LaWer said.

Health care coverage is just one of the HR functions that companies will need to take into account.

"Employers will need to evaluate the extent to which state laws restricting abortion may impact their health care plans, privacy practices, leave accommodations, company culture and other employment policies. This will be an extraordinarily difficult task given the number and variety of state laws regulating abortion, open questions concerning the extent to which ERISA pre-empts such laws, and the intense social and political climate surrounding this issue," LaWer concluded.

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