Employers face ‘quagmire’ with ruling
Legal issues over coverage for workers in other states
The Supreme Court’s decision to strip women of the constitutional right to an abortion will not have an immediate effect in California on access to the procedure, but it creates major uncertainty for Bay Area companies that have employees spread across states.
With abortions likely to become illegal in about half of U.S. states, companies and employees have to navigate a thicket of legal questions. Those include whether and how to provide travel benefits for those who now need to go out of state to get an abortion, what happens when they return and potential lawsuits employees and companies face for helping a person get an abortion elsewhere in states where abortions are illegal.
“It’s become a hugely complicated quagmire which companies are going to have to take step by step and sort through as time goes on,” said San Jose State University School of Business Adjunct Professor Mark Schwartz.
Beyond covering travel expenses, companies are also limited in the help they can offer.
Tammy Sun, CEO of San Francisco company Carrot, which helps employers and health plans offer a range of fertility benefits, said in a statement that “people, employers and health plans face new and unprecedented challenges,” as a result of the decision.
“Moving forward, Carrot will provide the option for our customers to add coverage for travel expenses related to fertility care for both nonviable pregnancies and abortion in the U.S.,” and use its payments system to process and validate those claims, Sun said.
Some companies have already moved ahead with those kinds of offerings.
“We intend to offer travel expense reimbursements, to the extent permitted by law, for employees who will need them to access out-ofstate health care and reproductive services,” a spokesperson for Meta, formerly Facebook, said in an email. “We are in the process of assessing how best to do so given the legal complexities involved.”
Salesforce CEO Marc Benioff said on Twitter that CEOs have a responsibility to take care of their employees, adding: “Salesforce moves employees when they feel threatened or experience discrimination,” without specifically mentioning abortion.
A Twitter spokesperson declined to comment in an email. Google and Apple did not immediately respond to emailed requests for comments. Apple has previously said it would cover travel expenses for abortions.
San Francisco companies including Box, Figma, Yelp and Levi Strauss & Co. have said they would cover travel or relocation expenses to get an abortion.
Expense software company Expensify Chief Financial Officer Ryan Schaffer told employees in a Slack message Friday that in light of the news, “If you are seeking a medical procedure that is unavailable in your area, the company will cover travel expenses to travel to an area where a specialist can fulfill your medical needs.”
Schaffer said the change applies to anyone on company insurance, and that an employee did not have to be married to their significant other for them to get company coverage, too.
California Insurance Commissioner Ricardo Lara on Friday released an FAQ on how California law will continue to protect abortion access. Lara’s office said MediCal and most private insurers will continue to be required to cover the procedures, affirmed insurers cannot discriminate against patients for having an abortion by changing rates, and if there is no local in-network provider that can perform the procedure, insurers have to help patients find one and only charge in-network rates.
Some states where abortion is now illegal have discussed punishing doctors for performing the procedure as well as women who receive abortions out of state upon their return.
Laws in states including Kentucky, Louisiana, Missouri and South Dakota banning or criminalizing the procedure took effect on Friday as soon as the Supreme Court announced its decision.
“The now fractured state-by-state landscape of abortion complicates offering travel benefits, since states could potentially take legal action against the employee or a medical provider,” said Schwartz.
“What about the medical care professional in Texas or the state who provides healthcare to the woman after the fact” if there is a complication or they need follow-up care, he said.
Missouri lawmakers have also discussed allowing private citizens to sue anyone who helps a person get an abortion, including out-of-state-doctors and anyone who helps the person travel across state lines.
While lawmakers in Texas, where abortion will now be illegal, have signaled they want to make it unlawful for state residents to travel out of state to get the procedures, Justice Brett Kavanaugh wrote in the decision Friday that act was outside their power.
During a brief speech Friday, President Biden said the decision did not restrict a woman from traveling to another state to get an abortion, or a doctor there from treating her. He said if any state tries to interfere with those rights, “I will do everything within my power to defend against that un-American act.”
Biden did not say what his administration would do to protect women once they had returned to their home state after traveling elsewhere to get the procedure.
Companies are also limited in the help they can give to their employees, Emily M. Dickens, chief of staff and head of government affairs at the Society for Human Resource management, said in a statement.
Dickens said the group’s research showed about a quarter of companies agreed with letting employees use pretax dollars to travel to get an abortion, “[b]ut how these policies interact with state laws is unclear, and employers should be aware of the legal risks involved.”
Dickens said about a third of employers surveyed pointed to paid time off as the best benefit to handle the issue, and that more than a third of those surveyed would not be more likely to offer additional travel benefits for an employee to get an abortion elsewhere.
While wealthy, work-from-anywhere tech companies can afford to expand benefits to make up for the lack of abortion access, many poorer women who must live where they work won’t have that privilege.
“This does become an issue of the haves and the have-nots,” Schwartz said. A tech company that relocated to Austin can hire people anywhere and move them around at will, but employees of a franchise of restaurants in Texas making minimum wage would not have that ability and could be hard pressed to come up with the funds to travel for the procedure, he said.
“Access to abortion and all other personal reproductive choices is not only an issue of health and personal liberty, but also squarely an economic issue that determines the welfare of working women and their families,” U.S. Secretary of Labor Marty Walsh said in a statement.
“Those most affected by this decision are lowwage workers, immigrants and women of color who now have even fewer options for critical health care,” California Labor Federation Executive Secretary-Treasurer Art Pulaski said in an emailed statement.
Biden agreed in his speech, saying because of the decision, “Poor women are going to be hit the hardest.”
“Access to abortion ... is not only an issue of health and personal liberty, but also squarely an economic issue.” Marty Walsh, U.S. labor secretary