Missouri Employers and Abortions as Healthcare: Don’t Ask, Don’t Tell

Authored by Ruth Binger with assistance from Sarah L. Ayers, contributor

The recent U.S. Supreme Court decision in Dobbs v. Jackson Women’s Health Organization triggered a ban on abortion in Missouri and several states. In 2019, Missouri passed the “The Right to Life of the Unborn Child Act,” an anti-abortion bill which included a trigger ban on abortions. In the event Roe v. Wade was ever overturned, the Governor or Attorney General was to issue a statement implementing the ban. Missouri Attorney General Eric Schmitt issued a statement proclaiming the trigger law in effect as of Friday, June 24, 2022, at 9 a.m. following the Dobbs decision.

A variety of new legal questions related to abortion and healthcare have arisen since the decision was announced and states, such as Missouri, have enacted trigger bans. One example of the confusion involves life-saving abortions in cases of a medical emergency. Under a new regulation issued by the Biden administration, a life-saving abortion in cases of a medical emergency is a federally protected procedure. Leaders in several states have challenged the regulation.

Another issue lies with pre-Roe bans in states which outlaw abortion and whose legality today is still questionable even with the reversal of Roe. Many states with pre-Roe bans are in the process of putting updated laws on the books that either re-affirm restricting abortion or protect abortion. Kansas voters recently rejected a proposed state constitutional amendment stating there is no right to abortion within the state. Other questions raised include: How will the laws be enforced? Who can be charged with conspiracy in states under a ban (such as Missouri)? Can a state with an abortion ban exclude a fetus from being considered a person in other areas of the law?

For employers, the biggest questions raised involve employer-sponsored insurance plans, such as what can and cannot be covered and data privacy of their employees. Employer health plans are required to cover abortion in cases where the mother’s life would be endangered or there is a medical emergency per the interpretation of the Pregnancy Discrimination Act by the U.S. Equal Employment Commission. Health insurers are subject to state laws, impacting whether polices must, or are even allowed to, cover abortion services.

Some employers are exploring options to provide benefits that cover reproductive healthcare in other ways. One option is to reimburse employees for travel that is related to health purposes. But this can raise other issues for employers to consider, such as how to construct a program or what legal risks exist.

A second option is an Employee Assistant Program (EAP) that could be structured to provide health benefits buts still avoid legal requirements by falling under an EAP exception. For an EAP to qualify as an EAP exception, it cannot (1) provide significant health benefits; (2) require enrollment in another group health plan; (3) charge a premium to participate; and (4) require any cost-sharing for covered benefits.  The meaning of significant health benefits is largely subjective but often federal agencies take into consideration the amount, scope, and duration of covered services. Additionally, an EAP would only be able to cover travel expenses and could not explicitly cover abortion.

A third option would be reimbursement through a health savings account (HSA). One challenge with HSA reimbursement is that reimbursement is limited to the IRS maximums. Another challenge is that employers can only contribute to a high deductible health plan.

There are also legal risks employers should be mindful of when publicizing these benefits. Texas and Oklahoma have abortion laws that allow for private citizens to file civil suit to prosecute abortion. Anti-abortion groups in Texas have accused employers who have stated they will reimburse for travel and other benefits of aiding and abetting illegal abortions and stated they plan to pursue legal action against them. Currently, the best way to protect your business is to keep information you collect to a minimum and to not inquire as to how employees utilize such plans.

Another concern involves crossing state borders. There are currently no abortion bans that would stop a woman from crossing state lines to seek an abortion, but states could try to issue such legislation in the future. The Biden administration has stated that the Attorney General will sue for any such bans that are enacted as a breach of the interstate commerce clause and issued a call for attorneys to help litigate any travel bans that would are issued. Additionally, Justice Brett Kavanaugh expressed sentiment that he believed there was a constitutional right to interstate travel in his concurrence of the Dobbs decision. Given Justice Kavanaugh’s support of the right to interstate travel and the current makeup of the Court, it is unlikely such a ban would pass the Supreme Court.

Employers have also asked questions about enforcement of the bans and employee privacy. Often, evidence of violations of an abortion ban is gathered through online activity, such as text messages or web searches, and medical records. President Biden has asked the Chair of the Federal Trade Commission to consider taking steps toward protecting consumer privacy and online activity.

Additionally, new guidance on the Health Insurance Portability and Accountability Act (HIPAA) was issued to remind doctors that they do not have to, and often are not permitted, to disclose private medical information with law enforcement. HIPAA only applies to programs that are group health plans and does not apply to employer plans. Information that is normally protected by HIPAA can still be obtained through employee consent, a court order, a subpoena, or a warrant. Since use of such services is highly confidential information, employees may be hesitant to share information on use of those services with an employer. Many employers are keeping records related to employee healthcare as vague as possible by simply listing it as reproductive healthcare since it is still unknown how much sensitive employee information an employer can be forced to share in court.

In the coming years there will be litigation over the impacts of abortion bans and the recent questions raised. Private companies that have announced assistance to employees have already been accused of illegally aiding and abetting abortion and have asked to keep related records on hand for litigation, indicating that these issues may be handled soon by local courts.

The legal landscape surrounding employer insurance may change quite a bit in the coming years. Employers should proceed with caution, balancing what is best for their employees and what legal risks they are willing to take, and seek legal advice before making any major changes.

Posted by Attorney Ruth Binger and Sarah L. Ayers. Binger serves both emerging and mature businesses concentrating in corporate law, intellectual property and technology law, cybersecurity, digital media law, and labor and employment law. Her commitment to the success of small to medium-sized businesses, and her understanding of multi-faceted issues inherent in operations, are what distinguish Binger’s practice. Ayers, law clerk, is a student at Saint Louis University School of Law and a graduate of  Westminster College in Fulton, MO.

Published in the October 2022 St. Louis Small Business Monthly.

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