Amazon.com Inc, Apple Inc, Lyft Inc, Microsoft Corp, and JPMorgan Chase & Co were among the companies that announced plans to provide those benefits through their health insurance plans ahead of Friday's U.S. Supreme Court decision overturning the landmark 1973 Roe v. Wade decision that legalized abortion nationwide.
Conde Nast CEO Roger Lynch sent a memo to staff an hour after the decision was released, announcing a travel reimbursement policy and calling the court's ruling "a crushing blow to reproductive rights." According to a spokesman, Walt Disney Co unveiled a similar policy on Friday, telling employees that the company recognizes the impact of the abortion ruling but remains committed to providing comprehensive access to quality healthcare.
On Friday, companies such as health insurer Cigna Corp, Paypal Holdings Inc, Alaska Airlines Inc, and Dick's Sporting Goods Inc announced reimbursement policies.
As a result of Friday's ruling, abortion restrictions already in place in 13 states went into effect, and at least a dozen other Republican-led states are expected to ban abortion.
The conservative majority on the court upheld a Mississippi law that prohibits abortion after 15 weeks. Meanwhile, some Democratic-led states are working to expand abortion access.
Companies will have to navigate a patchwork of state laws and risk attracting the wrath of anti-abortion groups and Republican-led states if they adopt policies that encourage employees to have abortions.
Texas lawmakers have already threatened Citigroup Inc and Lyft, both of which had previously announced travel reimbursement policies, with legal action. In a letter last month to Lyft CEO Logan Green, a group of Republican lawmakers stated that if the ride-hailing company implements the policy, Texas will "take swift and decisive action."
The legislators also laid out a number of abortion-related proposals, including one that would prohibit companies from doing business in Texas if they paid for residents of the state to have abortions elsewhere.
LAWSUITS LOOMING
According to Robin Fretwell Wilson, a law professor at the University of Illinois and an expert on healthcare law, it is only a matter of time before companies face lawsuits from states or anti-abortion campaigners claiming that abortion-related payments violate state bans on facilitating or aiding and abetting abortions.
"If you can sue me as an individual for transporting your daughter across state lines, you can sue Amazon for paying for it," Wilson explained.
Amazon, Citigroup, Lyft, Conde Nast, and a number of other companies that have announced reimbursement policies have yet to respond to requests for comment.
According to several lawyers and other legal experts, the federal law regulating employee benefits will provide critical cover in civil lawsuits over their reimbursement policies for many large companies that fund their own health plans.
The Employee Retirement Income Security Act (ERISA) of 1974 prohibits states from enacting requirements that "relate to" employer-sponsored health plans. For decades, courts have interpreted that language to prohibit state laws that limit what health plans can and cannot cover.
ERISA governs self-insured benefit plans, which are funded directly by employers. According to the Kaiser Family Foundation, self-insured plans will cover 64 percent of U.S. workers with employer-sponsored health insurance in 2021.
According to Katy Johnson, senior counsel for health policy at the American Benefits Council, any company sued over an abortion travel reimbursement requirement will almost certainly cite ERISA as a defense. And she believes that will be a strong argument, particularly for businesses that have general reimbursement policies for necessary medical-related travel rather than those that specifically target abortion.
Johnson stated that reimbursements for other types of medical-related travel, such as visits to hospitals designated as "centers of excellence," are already common, despite the fact that abortion policies are still uncommon.
"While this may appear to be novel, it is not in the broadest sense, and the law already tells us how to deal with it," Johnson explained.
LIMITS
The argument has limitations. Fully-insured health plans, in which employers purchase coverage from a commercial insurer, insure about one-third of workers and are governed by state law rather than ERISA.
Most small and medium-sized businesses in the United States have fully-insured plans and cannot claim that ERISA prohibits states from limiting abortion coverage.
Furthermore, ERISA does not preclude states from enforcing criminal laws, such as those in several states that make it a crime to aid and abet abortion, so employers who implement reimbursement policies may face criminal charges from state and local prosecutors.
However, because most criminal abortion laws have not been enforced in decades since Roe v. Wade, it is unclear whether officials would try to prosecute companies, according to Danita Merlau, a Chicago-based lawyer who advises businesses on benefit issues.