Some U.S. states chose to protect abortion access while others implemented “trigger laws” that immediately banned the procedure when the Supreme Court’s decision was handed down.⁶ Corporate responses have varied from announcing health plan updates to cover the cost of out-of-state travel for necessary care, to statements advising the issue and subsequent action of local state legislatures is being closely monitored.¹ Organizations including Amazon, JP Morgan Chase, and Disney, among many others, have reiterated their focus on improving the health and well-being of employees by ensuring equitable access to all benefits for an array of healthcare needs such as mental health services, infertility treatments, and specialty cancer treatments in addition to family planning services.^1,3 While a number of organizations took swift action to update their benefits, others have taken a more reserved approach, confirming that they are partnering with health and welfare consultants as well as attorneys to evaluate the decision’s impact and their options as they work to develop legally compliant policy.³ No matter the position a company takes, the decision to overturn Roe v. Wade raises questions for policyholders across a wide spectrum of coverage lines.

POTENTIAL DIRECTORS & OFFICERS (D&O) ISSUES

Companies that have stepped in to aid employees seeking reproductive health services across state lines may be open to a variety of corporate liability and Directors’ and Officers’ (D&O) liability risks.¹¹ Organizations that choose to reimburse travel or other employee expenses related to reproductive care may find themselves the target of a derivative claim under D&O coverage if shareholders allege misuse of corporate funds. Derivative lawsuits enable an individual owner to bring a suit against alleged wrongdoers on behalf of a company and force liable parties to compensate the entity for injuries caused. Derivative suits are intended to provide concerned individuals with the power to check against abuses perpetrated by those in leadership.⁷ On the other hand, a company that does not provide assistance for out-of-state care may face liability if a serious injury or death occurs due to lack of reproductive healthcare access.

FIDUCIARY LIABILITY & ERISA

D&O claims aren’t the only potential issue companies are facing. If an employer reimburses medical, surgical, or travel costs associated with procuring a legal abortion through the company’s group health plan, a health reimbursement arrangement, or other employee benefit plan subject to the Employee Retirement Income Security Act of 1974 (ERISA), the employer may face criminal liability for aiding and abetting an abortion excluded from ERISA preemption.10 Often, companies benefit from protection against a criminal or civil action brought under state law because Section 514 of ERISA indicates that state laws related to employee benefit plans are generally preempted. Nevertheless, employers would be wise to ensure that any reproductive healthcare benefit offered under an employer-sponsored ERISA plan is specifically limited to benefits for care provided in compliance with the laws of the state in which the medical services are rendered.¹⁰

IMPLICATIONS FOR EMPLOYMENT PRACTICES

Employers are also open to Employment Practices Liability (EPL) claims from employees that allege discrimination, retaliation, or harassment based on utilizing reproductive care offerings. According to the Equal Employment Opportunity Commission (EEOC), Title VII, subsequently amended by the Pregnancy Discrimination Act of 1978 (PDA), protects women against harassment or discrimination in employment based on pregnancy or related medical conditions, including abortion. For example, it would be considered unlawful for a manager to pressure an employee to undergo an abortion or not have an abortion in order to retain employment or be promoted.⁸

While not all employees will utilize these employer-provided services, it is likely to remain a topic of interest and discussion for many, which sparks further questions around issues of free speech. Some companies have reportedly prohibited employees from discussing controversial issues such as abortion on internal company channels to avoid potential hostile work environment claims.³ However, employees generally don’t have the right to discuss reproductive rights in the workplace, except in very limited circumstances. The First Amendment rights to free speech pertain to preventing the government from being able to prohibit speech, not private employers. Even public employers are able to discipline employees’ speech to ensure efficient operations. However, the National Labor Relations Act (NLRA) requires employers to allow “protected concerted activity,” which could include employee discussions related to the “terms and conditions” of employment, like group health insurance coverage for abortions or related travel expenses.⁸

PROTECTING PRIVACY

With a highly personal healthcare issue in the spotlight, privacy concerns have also come to the forefront. Employers are still required to protect private health information and failing to do so could expose an employer to a discrimination or harassment claim under Title VII or state discrimination and privacy laws. The Americans with Disabilities Act (ADA) requires employers to treat any medical information obtained from a medical inquiry or examination including information about an employee’s reproductive healthcare as a confidential record. In addition, the Health Insurance Portability and Accountability Act (HIPPA) requires employers to maintain the confidentiality of employee medical information derived directly from a group health plan. If an employee simply advises an employer about a health issue or treatment they have received, that information is not protected under HIPAA.⁸

When it comes to protecting information such as private messages or online search data, company data centers could be utilized to link patients to care restricted in multiple U.S. states, and the largest tech companies have been largely silent about what they would do if that information were subpoenaed. However, many companies have reassured staff that their privacy regarding healthcare matters will be protected as medical decisions are often deeply personal, and consultations with medical professionals are confidential.¹ The situation is complicated by the variety of state laws regarding reproductive care and the fact that data isn’t always stored in the state where a patient resides or where a company is based. If patients travel to seek care, it’s not known which jurisdiction would prevail in obtaining data, but it’s anticipated that companies will be facing warrants and subpoenas in both civil and criminal cases.⁹

MEDICAL MALPRACTICE CONCERNS

With healthcare services at the heart of the debate, medical malpractice concerns have skyrocketed. A recent amicus brief from twenty-four medical groups, including the American Medical Association and the American College of Obstetricians, suggested the Supreme Court’s decision will force physicians to make difficult choices between upholding their ethical obligations and adhering to the law. Further muddying the waters, some state laws do not explicitly address gray areas like miscarriages, ectopic pregnancies, or the impact of other grave health conditions like cancer on a pregnancy. Medical providers have concerns about whether the care provided in these instances will be criminalized or result in a new wave of malpractice claims.⁴ Because individual states have various laws on the books, the extent of potential liability remains unclear, especially for organizations operating in multiple state jurisdictions.

In addition, telehealth providers supplying reproductive healthcare services across multiple states are also likely to see their ability to offer care restricted in certain areas. Medical students and residents in some states may not receive training related to reproductive or women’s healthcare, which could have long-term implications for patient care. From a medical malpractice and legal standpoint, it’s likely that many health care systems, and even individuals, are going to take a very risk-averse stance.⁴

OTHER POSSIBLE ISSUES

In addition to regular civil suits, businesses could be accused of aiding and abetting some form of bodily injury that could trigger a general liability policy if anti-abortion litigators allege that enabling someone to obtain an abortion outside the state is akin to causing bodily harm to a fetus.¹¹ Individual employees could also potentially be subject to criminal and civil suits if they utilize abortion travel benefits offered. For example, Texas’ Senate Bill 8 passed in 2021 empowers private citizens to sue anyone that “aids or abets” an abortion after approximately six weeks of pregnancy. In addition, the law is extremely broad, allowing anyone, regardless of where they live or if they have any connection to patient, to bring a lawsuit against anyone for allegedly helping an individual obtain an abortion in virtually any way.⁵ It’s currently unclear if those liabilities, including defense costs, would be covered under liability insurance available to employees.¹¹

BOTTOM LINE

The insurance implications around the overturn of Roe v. Wade are complex and still evolving. Companies should exercise caution as many liability questions remain unanswered. Companies offering travel expenses or other benefits that enable access to out-of-state healthcare and reproductive services must carefully assess how best to do so, given the legal complexities and potential issues that could result in claims. Employers should monitor the situation closely and engage with legal counsel to develop policies that comply with their various legal obligations. Agents are welcome to reach out to their local CRC Group producer with questions or concerns. CRC Group is continuing to monitor the situation and will keep you informed as it unfolds.

CONTRIBUTORS

• David Gilfillan is CRC Group’s Chief Claims Officer and one of the most experienced and respected claims executives in the insurance industry; He partners with executives, brokers, agents, and insureds to analyze claim coverage and related issues, providing valuable insights and facilitating favorable resolutions.

END NOTES

1. More Companies Weigh In on SCOTUS Abortion Ruling, The Insurer, July 5, 2022. https://www.theinsurer.com/analysis/more-companies-weigh-in-on-scotus-abortion-ruling/23737.article
2. Companies Vow to Help Employees Access Abortion After Roe vs. Wade is Overturned, Advisen Front Page News, June 25, 2022. https://www.advisen.com/tools/fpnproc/fpns/articles_new_1/P/437163968.html?rid=437163968&list_id=1
3. What are Abortion Trigger Laws and Which States Have Them?, The New York Times, June 24, 2022. https://www.nytimes.com/2022/06/25/us/trigger-laws-abortion-states-roe.html
4. What Will Post-Roe Reproductive Care Look Like?, Advisory Board, June 28, 2022. https://www.advisory.com/daily-briefing/2022/06/28/roe-reaction
5. Abortion Funds Bring New Legal Challenges to Overturn Texas Ban, The Texas Tribune, March 24, 2022. https://www.texastribune.org/2022/03/24/texas-abortion-law-legal-challenges/
6. Map: 22 States Would Ban Abortion in a Post-Roe America, NBC News, May 3, 2022 https://www.nbcnews.com/data-graphics/map-23-states-ban-abortion-post-roe-america-rcna27081
7. Direct vs. Derivative Claims – What is the Difference?, Schwartz Law Firm, June 23, 2021. https://schwartzlawfirmpa.com/direct-vs-derivative-claims-what-is-the-difference/
8. FAQs on the Overturning of Roe v. Wade, SHRM, June 24, 2022. https://www.shrm.org/resourcesandtools/tools-and-samples/hr-qa/pages/faqs-on-the-potential-overturning-of-roe-v-wade.aspx
9. Tech Giants Brace for Legal Mess of Abortion Data Subpoenas, Insurance Journal, July 8, 2022. https://www.insurancejournal.com/news/national/2022/07/08/675165.htm
10. Considerations for Employers and Employer Plan Sponsors Related to Potential Changes in the Effect of Roe v. Wade, Morgan Lewis, May 6, 2022. https://www.morganlewis.com/pubs/2022/05/considerations-for-employers-and-employer-plan-sponsors-related-to- potential-changes-in-the-effect-of-roe-v-wade
11. Roe v. Wade: Corporate Liability and D&O Exposures Abound, Insurance Business America, July 15, 2022. https://www.insurancebusinessmag.com/us/news/professional-liability/roe-v-wade-corporate-liability-and-dando-exposures-abound-413322.aspx
12. What the Data Says About Abortion in the U.S., Pew Research Center, June 24, 2022. https://www.pewresearch.org/fact-tank/2022/06/24/what-the-data-says-about-abortion-in-the-u-s-2