What do GCs need to know right now about abortion trigger bans, HIPAA and how to not break the law?

In an exclusive interview, an attorney at McDermott Will & Emery’s Post-Roe practice group answers questions about how Texas’ trigger ban laws will impact employers, whether HIPAA protections apply to abortion access and the latest in Washington on rulemaking to strengthen ERISA preemption defense.

Many employers have famously committed to protecting abortion access for their employees. Some have vowed to cover travel for the procedure. Meanwhile, looming trigger ban laws outlawing abortion in states such as Texas and Idaho that go into effect before the end of the month make keeping those promises difficult. Sarah Raaii, co-chair of McDermott Will & Emery’s interdisciplinary post-Roe team of more than 40 attorneys, recently spoke to MedCity News about how the group would advise general counsel at companies looking to protect access to abortion for employees.

MedCity News:: What do GCs need to know about the upcoming trigger ban law in Texas? 

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Raaii: So there is a trigger ban that goes into effect a month after the Dobbs’ opinion is finalized. And in addition to that, we’ve seen a group of 10 Texas lawmakers who have threatened specifically companies that have publicly come out and said that they will provide travel benefits. This group of lawmakers’ position is that even if you’re an employer simply reimbursing your employees, or an individual who lives in Texas, to travel to a state in which it’s legal to obtain an abortion like New Mexico for instance, that in itself already violates the existing Texas law. And they’ve also threatened to pass additional legislation that would specifically target employers that are providing any type of travel benefits or travel reimbursement for reproductive health care. It seems there’s no zero risk way for employers to offer reproductive health benefits in these restrictive states, but there’s certainly ways to try to mitigate that risk. For instance, trying to make sure that you’re carefully crafting any public statements that you’re making about any type of reproductive health benefits that you’re offering.

MedCity News: How can employers legally provide safe abortion access as a benefit? 

Raaii: I think it’s important for employers to think about how to structure these benefits because depending on pending court cases, and potentially additional guidance that we might get from the federal government, there might be advantages to structuring reproductive health benefits in certain ways. For example, providing them under an existing ERISA health plan versus creating other plans or non- ERISA plans because ERISA preemption might prove to be a defense for at least some of the potential liability that employers could face. (Editor’s note: The Employee Retirement Income Security Act (ERISA) is a federal law that sets minimum standards for most voluntarily established retirement and health plans in private industry to provide protection for individuals. In a non-ERISA plan, the employer is not involved except for in compliance actions.)

So there’s ways to at least protect companies that want to offer these benefits. That’s why it’s important to partner with legal counsel to make sure that’s being carefully crafted on the back end when companies are figuring out what makes sense for them for reproductive health benefits. 

MedCity News: What do you tell GCs at these companies who have already made these public statements saying that they’ll do anything to protect their employees’ access to abortion?

Raaii: “Companies are not necessarily at immediate risk by simply stating their support for reproductive health care and noting that they want to help their employees access such health care. However, some companies have made public statements about abortion access and the overturning of Roe v. Wade that have drawn negative attention from certain restrictive states’ lawmakers. I think there’s a right way and a wrong way to publicly message reproductive health benefits, so companies should work with knowledgeable counsel to carefully craft reproductive health benefits and any statements about them.

MedCity News: What’s at the top of your mind that you’re awaiting clarity on legally in terms of the changing landscape for abortion law? 

Raaii: It seems like every week there’s some new development. Last week we saw a referendum in Kansas to enshrine the right to abortion in the state’s constitution, then we saw Indiana pass a new state ban outlawing abortion, so it seems like states will keep passing additional laws potentially even before a trigger law might go into effect. One thing that GCs and employers should do is closely track any new state developments in a state you have business interests in. And if you have employees all over, unfortunately that could mean keeping track of 50 different states laws because it’s as simple as “this state does or doesn’t prohibit abortion,” there’s different levels of protection.

MedCity News: What do GCs need to know about privacy laws and how HIPAA relates to employers providing abortion access? 

Raaii: One other thing I think that we’re watching out for is any type of federal guidance. Recently, HHS issued a reminder with guidance for when HIPAA permits but does not require the disclosure of protected health information and that would apply to any protected health information related to obtaining abortion services as well. We’ve also gotten a reminder from the agencies saying that despite what any states may try to do, the Affordable Care Act requires all health plans to cover contraceptive coverage with no cost sharing and that’s always been the case ever since the Affordable Care Act was enacted.

MedCity News: What’s next in terms of information you’re waiting on that GCs need to advise companies on the abruptly changing laws? 

Raaii: I know trade groups of employers have appealed to the federal government, to the Department of Labor, to HHS, and to the Department of Treasury, to really get some guidance on how employers can offer abortion benefits, reproductive health benefits, and abortion travel benefits without really risking both civil and criminal penalties in some of these states so we’re hoping to get more guidance there to help employers get more comfortable providing these benefits.

MedCity News: What are the ramifications of the Biden administration suing the state of Idaho last week to protect access to abortion? 

Raaii: I think it’s no surprise that the Idaho lawsuit was filed by the Department of Justice, the first federal government lawsuit in this battle. We expect to see more of that, where the federal government is really trying to protect individuals’ right to access the services and an individual’s rights to travel. Even at the outset, we’ve been telling employers that this will be a lengthy legal battle. I think the courts hopefully will help us determine what the boundaries of a lot of these state laws are, because if you look at them, many of them are drafted broadly so they could potentially not only implicate abortions, but if states wanted to really interpret them in a broad sense they could be extended to apply to fertility treatments, for instance, such as IVF and that’s something that more and more employers had been covering in their health plans.

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