On June 24, 2022, the United States Supreme Court issued its decision in Dobbs v. Jackson Women’s Health Organization, holding that the regulation of abortion shall be left to the discretion of the states. The decision reversed Roe v. Wade and Planned Parenthood v. Casey, which had previously established a constitutional right to abortion. Post-Dobbs, states are no longer required to allow baseline access to abortion and may ban abortion outright. This landmark change may impact numerous employment related laws, regulations and policies. Kane Kessler is monitoring federal and state agencies to obtain further guidance on potential enforcement directives.
Though still developing and subject to change, numerous states have either passed or are expected to pass laws restricting or banning abortion and related services. In anticipation of the Dobbs decision, certain states enacted “trigger laws” that automatically or, upon some procedural step, outlaw or heavily restrict abortion access upon the reversal of Roe v. Wade. The states that have enacted trigger laws are Kentucky, Louisiana, South Dakota, Idaho, Tennessee, Texas, Arkansas, Mississippi, Missouri, North Dakota, Oklahoma, Utah, and Wyoming. However, as of this writing, some of those laws have been temporarily enjoined by courts, including Utah and Louisiana. Other states are likely to outlaw or heavily restrict abortion in the near future, while the status of abortion laws in other states is uncertain. Lastly, there are states where access to abortion is almost certain to be protected.
Pre-Dobbs, although abortion regulation varied significantly across states, the ability for employers to offer coverage for abortion services across state lines was not in dispute. Now, the Dobbs decision raises certain novel legal issues employers will face resulting from the wave of bans and restrictions in multiple states, which Kane Kessler will continue to monitor, such as:
- Employer-sponsored health coverage for abortion or related services, including group health plan considerations and potential conflicts between plan coverage and state law;
- Travel reimbursement for abortion or related services, including considerations related to administration and structure of such a benefit as well as potential litigation risk and criminal liability under certain states’ laws, such as aiding and abetting liability;
- Impact on disability, pregnancy, domestic abuse victims and other related policies;
- Discrimination issues related to gender-specific benefits, requests for accommodations, and religious conflicts;
- Employer leave of absence policies.
The attorneys in Kane Kessler’s Labor & Employment Practice Group are available to help companies address these issues and navigate the developing landscape following the Dobbs decision and will provide additional updates. If you have any questions, please contact the Co-Chairs of Kane Kessler’s Labor & Employment Practice Group, Valerie K. Ferrier at 212 519-5107, vferrier@kanekessler.com, or Jeffrey G. Douglas at 212 519-5183, jdouglas@kanekessler.com.