Managing State Law Risks Of Employer-Sponsored Abortion-Related Travel Benefits Post-Dobbs

• Published date: 09 August 2022
• Subject Matter: Employment and HR, Retirement, Superannuation & Pensions, Employee Benefits & Compensation
• Law Firm: Mintz
• Author: Mr Alden Bianchi, Greer A. Clem and Jennifer Rubin

In previous posts (available here and here) we reported on some of the legal consequences from Dobbs v. Jackson Women's Health Organization on employer-sponsored group health plan coverage of abortion-related travel benefits. This post addresses the larger concern related to the legality of these benefits in the face of a burgeoning number of states seeking to extend their extra-territorial reach to bar or even criminalize individuals who provide abortion-related travel.

At issue here is the question of the extra-territorial application of state law. Under what circumstances may a state that bans abortion apply its civil or criminal law to citizens procuring abortions in other states lacking such bans? And what exposure might an employer face for facilitating out-of-state abortions through travel reimbursement programs that run afoul of such bans?

At first blush, one might wonder what all the fuss is about. Don't U.S. citizens have an unfettered right to travel? Citizens who live in states that ban gambling or marijuana routinely make their way to Nevada and Colorado, respectively without fear of legal liability. This somewhat obvious travel right might be exactly what Justice Kavanaugh was referring to in his concurring opinion in Dobbs when he asked whether a state could bar one of its residents from traveling to another state to obtain an abortion. In answering the question, he opined that the answer is no "based on the constitutional right to interstate travel."

Justice Kavanaugh provided no support for his conclusion, however. He could have, for example, cited a 1975 Supreme Court case, Bigelow v. Virginia, which held that Virginia could not prevent its residents from traveling to New York to obtain an abortion. But despite this precedent, the extraterritorial application of state law is a fairly undeveloped legal area. The right to travel, among other, related rights, implicates long-debated questions of Constitutional law that involve the Full Faith and Credit Clause, the Due Process Clause of the Fourteenth Amendment, and the Constitution's general federalism principles. These issues and more are dissected at length in a paper that we found particularly insightful, David S. Cohen, Greer Donley & Rachel Rebouché, The New Abortion Battleground. The paper is currently in draft. It will be published in the Columbia Law Review.

Background

Our earlier posts addressed abortion-related travel benefits in the context of group health plans, which are governed by the Employee Retirement Income Security Act (ERISA). In general, ERISA...