The Law Office of Richard Vaznaugh

Expertise in Workplace Rights for California Workers

The Law Office of Richard Vaznaugh
505 Sansome Street
Suite 850
San Francisco, CA 94111
Phone: (415) 593-0076
Fax: (415) 653-8935

Reproductive Rights

Reproductive rights—having the ability to decide whether and when to have children—are important to a childbearing individual’s socioeconomic well-being and overall health. In the United States, the 1973 Supreme Court case Roe v. Wade established the legal right to abortion. In June 2022, the United States Supreme Court overturned Roe v. Wade. Now, millions of people do not have a right to a legal abortion. Because of this decision, many states are expected to ban or restrict abortion. Thirteen states have “trigger laws” which would ban or severely restrict access to abortion; these laws go into effect immediately or shortly after Roe v. Wade in s overturned. Employers may also face compliance-based questions for the workplace. This page provides information about access to legal abortion care now that Roe v. Wade is overturned, as well as the effect this will have on the workplace.

1. What was Roe v. Wade about?

The ruling struck down laws in many states that had barred abortion, declaring that they could not ban the procedure before the point at which a fetus can survive outside the womb. That point, known as fetal viability, was around 28 weeks when Roe v. Wade was decided. Today, most experts estimate it to be about 23 or 24 weeks.

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2. Why did the United States Supreme Court overturn Roe v. Wade?

Since the Roe v. Wade ruling, abortion rights are one of the most polarizing political issues of the past half-century. Citizens and law makers have strong beliefs about whether childbearing individuals have a right to abortion. When a majority of the justices on the United States Supreme Court believe that childbearing individuals do not have a constitutional right to abortion, they overturned the previous ruling and gave the decision on whether to allow abortions to each state.

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3. What happens now that the United States Supreme Court overturned Roe v. Wade?

Individual states can decide whether and when abortions would be legal. The practice would likely be banned or restricted heavily in about half of them, but many would continue to allow it. Thirteen states have trigger laws which ban abortion or have severe restrictions on abortion. These laws go into effect immediately or shortly after Roe v. Wade is overturned.

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4. Now that Roe v. Wade is overturned, does that mean abortion is illegal everywhere in the United States?
No. Individual states would decide whether and when abortions would be legal. Many states would continue to allow them, but as many as 26 states will now have laws that significantly restrict or ban abortions within their jurisdiction. These laws vary in breadth and scope, from prohibiting physicians from performing abortions, restricting access to abortion medication, attaching civil penalties and criminal liability to those who knowingly or unknowingly aid or abet in the termination of pregnancy, to conferring “personhood” at the time of conception. Consult the state law to understand what is allowed, restricted, or prohibited. See the Planned Parenthood website for state information.  

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5. Can a state’s anti-abortion laws apply beyond its borders?

Most of us assume that if we travel out of state, we must follow the laws of wherever we are and that the laws of our home state do not apply. However, there is no settled law that clearly reflects this understanding. Though there are strong arguments that various parts of the Constitution — including the Due Process Clause, the Privileges or Immunities Clause, the Citizenship Clause, and the Dormant Commerce Clause — prohibit states from exercising their jurisdiction beyond their borders, the precedent on these points is not well developed.

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6. Can states provide abortion care for people from out of state?

As abortion restrictions tighten, legislators are already acting to help out-of-state people seeking abortions. Connecticut passed a bill that will make the state a safe place for providers to care for people from other states; it is waiting for the governor’s signature. See the law for more information. Efforts to pass similar laws are already underway in California, New York, and Illinois.

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7. What about abortion by mail?

Historically, states have controlled abortion by controlling the providers who performed abortion procedures. But medication abortion — the two-drug regimen that the FDA has approved to end a pregnancy in the first 10 weeks — is now available by mail. People who live in a state where abortion is illegal can buy abortion pills online, either on their own or with the help of international providers. And patients have found ways to obtain abortion pills via telehealth even when they live in states that forbid the practice by using mail forwarding or giving the address of a friend or family member who can forward the medication to them.

This exposes patients, particularly the most vulnerable patients, to various legal risks. But with state and local officials having no ability to tell what a package contains (and no legal authority to inspect packages without specific suspicion and a warrant), mailed pills will be difficult to police.

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8. Now that the United States Supreme Court overturned Roe v. Wade, how does this affect the workplace?

The following questions and answers highlight the key issues affecting the workplace now that Roe v. Wade is overturned. See the Society of Human Resource Management article for more information.

Can employers discriminate against employees who get an abortion?

Title VII of the Civil Rights Act of 1964, as amended by the Pregnancy Discrimination Act of 1978, protects childbearing individuals against discrimination and harassment in employment based on pregnancy, childbirth or related medical conditions, which would include abortion. See workplacefairness.org for more information on discrimination.

Can an employer’s group health insurance plan exclude coverage for abortions?

Employers have traditionally relied on the federal laws that govern employer-sponsored health plans, including the Employee Retirement Income Security Act of 1974 (ERISA), to preempt state laws that attempt to regulate employer-sponsored benefit plans. However, employers should not assume that ERISA preemption provides full protection against all state laws relating to employee benefit plans. There are several exceptions that may undercut ERISA For example, ERISA does not preempt state insurance laws. Employer plans that provide medical coverage through the purchase of insurance (rather than self-funding employee medical benefits), are subject to applicable state insurance laws and regulations, which may prohibit coverage for abortion care or other health care services. In addition, there is no clear federal case law that deals with ERISA preemption of state laws that attempt to impose criminal liability with respect to benefits provided under an ERISA health plan (such as criminal statutes that would penalize persons who aid and abet abortions). Finally, Title VII of the Civil Rights Act of 1964 does not require employers that offer health insurance to pay for coverage of abortions except where the life of the mother would be endangered if the fetus were carried to term, or where medical complications have arisen from an abortion. The statute also allows an employer to provide health insurance coverage for abortion if they wish to do so.

Must employers keep information regarding an employee’s abortion private?

Title VII of the Civil Rights Act of 1964 or state discrimination laws if used against an employee. See workplacefairness.org for more information on discrimination. 

The HIPAA privacy rule requires employers to maintain the confidentiality of employee medical information that was derived directly from the group health plan. However, when an employee simply tells an employer about a health issue they have or a treatment they have received, that information is not protected under HIPAA. See workplacefairness.org for more information on workplace privacy.

Can employers legally pay for an employee to travel to another state to have an abortion?

In most cases, there will be some vehicle an employer may use to pay for an employee to travel to another state for an abortion. Whether it’s through a group health plan, a flexible medical plan or something outside of a health-related benefit, compliance and/or taxation issues will need to be considered. All employers should consult with their own attorney before implementing such a benefit to ensure compliance and keep abreast of any new legal developments that would impact such a policy.

Paying for travel can raise legal and privacy concerns for employers. To guard against this, some companies are using third-party stipend platforms. These are typically used for broad categories like home office spending or wellness perks, some platforms also include health care. A medical travel benefit program by Level, for example, allows employees to pay for healthcare travel expenses directly using a card, without having to provide medical details, submit receipts or receive reimbursement, nor engage directly with their HR department. 

Do employees have the right to discuss reproductive rights in the workplace?

Generally, no. Many employees believe they have a right to free speech in the workplace, but that simply isn’t true. The First Amendment rights to free speech pertain to the government being unable to prohibit speech, not private employers. Even public employers can discipline employees’ speech to ensure the efficient operation of their offices. See First Amendment Protects Against Viewpoint Discrimination.  

However, employers cannot limit all employee speech. The National Labor Relations Act (NLRA) requires both union and nonunion employers to allow “protected concerted activity,” which could include employees discussing topics related to the “terms and conditions” of employment, such as group insurance coverage for abortions, or related travel expenses. See workplacefairness.org for more information on the NLRA.

Must employees be allowed to display posters or wear pins or shirts depicting views related to reproductive rights in the workplace? 

Generally, no, but a clear policy indicating what decorations and clothing are allowable, and consistent enforcement of it are needed. If, for example, an employee is allowed to wear a button promoting LGBTQ rights, but not reproductive rights, that could be discriminatory. 

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9. What has changed with healthcare insurance now that Roe v. Wade is overturned?

Health insurance companies will now have to navigate a new set of state-by-state regulations related to abortion. There are several things companies can do to address this issue. They can add coverage of travel expenses to obtain medical procedures, including abortions, not available nearby, or to ensure that parental leave and caregiving benefits meet the needs of new mothers who may be single or poor. See the Society for Human Resource Management for more information.

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10. Does overturning Roe v. Wade have negative economic consequences for childbearing individuals?
Yes. Some of the economic consequences of being denied an abortion include a higher chance of being in poverty even four years after; a lower likelihood of being employed full time; and an increase in unpaid debts and financial distress lasting years.

States in which abortion is legal and accessible have lower rates of teen first births and marriages. Abortion legalization has also been associated with reduced maternal mortality for Black childbearing individuals. The ability to delay having a child has been found to translate to significantly increased wages and labor earnings, especially among Black women, as well as increased likelihood of educational attainment. See the Economic Policy Institute Blog and Dobbs v. Jacksonville Women’s Health Organization amicus brief for more information.

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11. What is the President doing to help improve access to abortion?

President Joe Biden signed an executive order on July 8 directing federal agencies to take steps within their power to safeguard abortions and reproductive health services, including ensuring the availability of emergency contraceptive medications and providing legal protection for out-of-state patients and abortion providers. In addition to the executive order, the White House issued a fact sheet on its efforts to protect access to legal abortions.

 

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12. What is the President doing to help improve access to abortion?

President Joe Biden signed an executive order on July 8 directing federal agencies to take steps within their power to safeguard abortions and reproductive health services, including ensuring the availability of emergency contraceptive medications and providing legal protection for out-of-state patients and abortion providers. In addition to the executive order, the White House issued a fact sheet on its efforts to protect access to legal abortions.

 

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13. What is the President doing to help improve access to abortion?

President Joe Biden signed an executive order on July 8 directing federal agencies to take steps within their power to safeguard abortions and reproductive health services, including ensuring the availability of emergency contraceptive medications and providing legal protection for out-of-state patients and abortion providers. In addition to the executive order, the White House issued a fact sheet on its efforts to protect access to legal abortions.

 

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