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Opinion | Will Companies Help Their Employees Get Abortions?

Like it or not, business owners are being sucked into the fight over abortion. Now that the Supreme Court has ended the federal protection of abortion rights, the battle has moved on to whether companies will help their employees get abortions in any way, including by reimbursing them for expenses to travel out of state to obtain a legal procedure.

There’s no ducking this fight. Any decision a company makes will anger someone, and the consequences could be severe. Consider the threats that 14 Republicans in the Texas House of Representatives made in May to Lyft’s chief executive, Logan Green, after he said the company would cover travel costs for employees enrolled in a U.S. medical benefit plan who had to travel 100 or more miles to find an in-network abortion provider. (A Texas law that’s been temporarily blocked is set to ban all abortions except those that would save the life of a pregnant woman or prevent “substantial impairment of a major bodily function.”)

Lyft and any other company that pays for elective abortions or abortion-related expenses would be barred from doing business in the state of Texas under a bill that the 14 lawmakers said they would introduce. Another bill they outlined would “impose felony criminal liability” on corporate officers and directors if they gave any assistance for abortions without the “unanimous” consent of shareholders. (Unanimity is, of course, virtually impossible to achieve.)

“What you are doing with the company’s money is nothing short of theft,” the lawmakers wrote, “as you are taking resources that belong to the shareholders of Lyft — many of whom oppose abortion — and using them to advance your personal ideological beliefs.”

On the federal level, Senator Marco Rubio, Republican of Florida, has introduced the No Tax Breaks for Radical Corporate Activism Act, which is less extreme than the Texas House threat but would prohibit employers from deducting expenses related to their employees’ travel costs to obtain abortions. (It would also prohibit the deduction of expenses related to travel costs for employees’ children’s gender transition expenses, a much less frequent issue.)

I’m not convinced by the accusations of “radical corporate activism.” In my experience, most corporate chief executives are more eager to please their shareholders than to advance their own ideologies, which tend to be fairly bland anyway. The chief executives could — and do — argue that it’s in the best interest of shareholders to have a happy, healthy work force, and that providing access to abortions for women who need them will help achieve that objective.

In any case, Lyft, in a statement issued after the Supreme Court’s abortion decision, reiterated that “Lyft’s U.S. medical benefits plan includes coverage for elective abortion and reimbursement for travel costs if an employee must travel more than 100 miles for an in-network provider.” The Times has reported that Disney, Macy’s, H&M, Nordstrom, Nike, Dick’s Sporting Goods, Goldman Sachs, Bank of America and Snap have recently stated that they would assist employees who have to travel long distances for abortions. Other companies, including Starbucks and Yelp, had previously committed to doing so. Salesforce and Google said they would relocate employees who wanted to leave states where abortion is banned.

But those companies appear to be in the minority, according to a survey by the Society for Human Resource Management that was conducted just before the Supreme Court ruling. Only 5 percent of the 1,003 human resources professionals surveyed said their companies already covered travel expenses for employees to access abortion and reproductive services that are not accessible in their state of residence. (Those reimbursed expenses do not include spending from health savings accounts, which are under the employees’ control.) Another 6 percent said their companies were thinking of offering such coverage.

I spoke with Tami Simon, a senior vice president at Segal, an employee-benefits consultant. She said a key to how businesses cover abortion expenses will be a law passed one year after the Supreme Court’s 1973 Roe v. Wade decision: the Employee Retirement Income Security Act of 1974, or ERISA.

ERISA (rhymes with Melissa) sets “minimum standards for most voluntarily established retirement and health plans in private industry to provide protection for individuals in these plans,” according to the U.S. Department of Labor. It’s intended to ensure the quality of plans.

There are actually two kinds of employer-provided health plans: one where the risk of losses on claims is borne by an insurance company, and one where the risk of losses on claims is borne by the employer, and the insurance company just processes the paperwork. As a rough rule of thumb, companies with fewer than about 1,000 employees tend to buy fully insured plans from insurance companies, while most bigger companies self-insure to avoid insurance company fees and state law compliance, Simon said.

Small employers aren’t faced with the abortion dilemma because they have to go by whatever their insurers say. Abortion coverage is more of a live issue for big, self-insured companies. ERISA seems to give them a lot of room for free choice by granting their health plans a strong shield against state challenges. Subject to certain exceptions, it pre-empts state laws insofar as they “relate to” any ERISA-covered employee benefit plan.

But it’s not clear how the ERISA pre-emption applies to state laws regulating abortion, Simon and other Segal executives wrote on the company website on June 24, the day the Supreme Court overturned Roe v. Wade. One obstacle for employers who want to cover abortion-related travel expenses is the potential conflict between state law on abortion-related travel and federal law covering health plans.

If the health plans cover abortion-related expenses and states are not able to break through the ERISA pre-emption, the states might begin a second line of attack — instead of going after the plans, they might go after the companies that sponsor the plans. “The state attorney general may pursue criminal prosecution,” Simon said.

“This topic just overflows in complexity because things touch and overlap,” she said.

Regarding your Monday newsletter on the legitimacy of the Supreme Court, here is what Alexis de Tocqueville wrote about the justices in “Democracy in America” (two volumes, 1835 and 1840): “Their power is immense; but it is a power of opinion. They are omnipotent as long as the people consent to obey the law; they can do nothing when they scorn it. Now the power of opinion is that which is most difficult to make use of, because it is impossible to say exactly where its limits are. It is often as dangerous to fall short of them as to exceed them.”

Jack Ochs

“The purpose of studying economics is not to acquire a set of ready-made answers to economic questions but to learn how to avoid being deceived by economists.”
— Joan Robinson, “Collected Economic Papers: Volume II” (1964)

The newsletter will not be published on Monday, July 4.

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