O’Melveny Worldwide

After Dobbs: How Companies Facilitate Access to Abortion Care

March 1, 2023

The following alert is included in Insights 2023, a collection of articles and videos addressing important emerging legal issues in the year ahead.

As co-counsel with the Center of Reproductive Rights, O’Melveny represented the abortion provider in Dobbs v. Jackson Women’s Health Organization. Since the Court’s decision, we are helping employers, health insurers, and other affected clients address the myriad legal issues raised by the ruling.

The US Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization overturned the constitutional right to abortion established in Roe v. Wade in 1973. While the Dobbs decision affected many on a deeply personal level, it also changed the legal landscape, with the authority to regulate reproductive health care now left largely to the states. While some states have strictly limited, banned, or even criminalized the procedure, others have added protections to ensure continued abortion access.

Post-Dobbs, O’Melveny is helping employers, health insurers, and other affected clients address the myriad legal issues raised by the ruling.

Q: How have companies responded to Dobbs?

A: Many companies were prepared for this, and when the Dobbs decision was announced, they took steps to support abortion rights and to protect employees’ access to abortion care even when those employees reside in states with new restrictions.

One common approach has been to provide a benefit as part of employees’ health coverage that reimburses covered individuals for the cost of traveling to a location where they can access abortion care. So, for example, an employee who lives in Idaho could be reimbursed for the cost of traveling to California, in addition to getting reimbursed for the procedure itself.

Q: What risks do companies offering abortion-care benefits face?

A: There is still some uncertainty about whether and to what extent states will pursue the argument that offering the benefit violates state law. Generally, states may regulate the benefits in fully insured plans (i.e., those in which an employer purchases insurance from an insurance company), but ERISA preempts state regulation of the benefits for self-insured plans (i.e., those in which an employer provides the health benefits directly to employees). Self-insured plans have more flexibility in the benefits they can offer, but some states may, nevertheless, assert that companies that sponsor, insure, or administer a travel benefit are criminally aiding and abetting access to abortion care. That argument could raise unsettled ERISA preemption questions as well as thorny constitutional issues.

The legal landscape remains fluid. States continue to enact laws regulating abortion care, and litigation is affecting how these laws operate on the ground. There are emerging conflict-of-laws issues as states enact competing requirements. There has also been activity at the federal level, with companies mindful that the guidance and enforcement efforts on the federal side may change as well.

Many companies, including health-care companies, have had to reorganize their business activities against the backdrop of these unresolved issues. They are keen to understand the legal boundaries so they can facilitate access to abortion care where possible.

Q: Given this uncertainty, how can companies mitigate the risks of providing abortion-care benefits?

A: Most important is a careful analysis of the laws that may apply to the company, its employees, and its benefits plan. For now, there’s no way to eliminate risk, but by being mindful of the state-level constraints, you can structure a benefit program in a way that limits risk, or that at least puts you in the same category as most other employers who are trying to accomplish this goal.

Q: What are some of the legal developments we should look out for in the year ahead?

A: I would expect to see battles over cross-border access to abortion care. The FDA recently authorized increased access to one of the major abortion-inducing medications, which may prompt disputes over state-law dispensing limitations. And as many state legislatures reconvene for the first time since the Dobbs decision, we’ll see whether there is political appetite for finely tuned restrictions targeting the solutions that companies have adopted over the past year to facilitate access to abortion care.

This memorandum is a summary for general information and discussion only and may be considered an advertisement for certain purposes. It is not a full analysis of the matters presented, may not be relied upon as legal advice, and does not purport to represent the views of our clients or the Firm. Meaghan VerGow, an O’Melveny partner licensed to practice law in the District of Columbia and New York, contributed to the content of this newsletter. The views expressed in this newsletter are the views of the authors except as otherwise noted.

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