Agenda
- Opinion
- Labor & Employment
- ERISA/Benefits
- Government Affairs
- Privacy
- Healthcare
Dobbs v. Jackson Women's Health Organization
- 6-3 decision: Justice Alito wrote the majority opinion, with separate concurrences from Justices Thomas, Kavanaugh, and Roberts, and dissent by Justices Breyer, Sotomayor, and Kagan.
- Held that there is no constitutional protection for abortion, overturning Roe v. Wade and Planned Parenthood v. Casey.
Dobbs Decision
- Laws regulating abortion are entitled to a "strong presumption of validity" and will be upheld unless there is no "rational basis on which the legislature could have thought [the law] would serve legitimate state interests."
- Kicks the power to regulate abortion back to Congress (which is not acting right now) and the states (which are actively enacting legislation).
Concurrences
- Kavanaugh Concurrence: Argued that it would still be unconstitutional to prohibit travel to another state to seek an abortion, and unconstitutional to retroactively punish abortions.
- Thomas Concurrence: Suggested the Court should go further and reconsider other cases granting rights based on substantive due process, including the rights to contraceptives (Griswold v. Connecticut) and same sex marriage (Obergefell v. Hodges).
Why does the Dobbs decision matter to employers?
Four major legal considerations:
- Patchwork benefits and compliance
- Leave laws
- Discrimination claims
- Protected activity
Patchwork Benefits
- States are already enacting a variety of laws regulating access to abortions.
- Makes employer benefit compliance challenging, especially for multi-state employers.
- At least 15 states have enacted partial or total bans on abortions, and legislation continues to develop.
Patchwork Benefits
- Some of these states also impose liability on people or entities that assist people in obtaining an abortion.
- Employers will need to carefully consider which state laws apply to their employees, especially when operating in various jurisdictions, to reduce the risk of liability if they choose to offer any abortion services benefits.
Risk to Employers
- None of the current laws explicitly apply to abortions occurring outside of the respective states but some states (TX and OK), have civil style bounty laws permitting individuals to sue someone who aids or abets in provision of abortions in those states.
- Example: Texas Senate Bill 8 allows private citizens to file civil lawsuits against anyone suspected of performing or inducing an abortion, or anyone who "aids and abets" an abortion, with penalties of at least $10,000 per abortion within four years of the procedure or prohibited action. Oklahoma law is similar.
Risk to Employers
- Employers who provide transportation services or other services that could be viewed as "aiding or abetting" an abortion, will need to take extra caution.
- Rideshare companies such as Uber and Lyft have committed to provide legal expense support for any drivers sued for taking individuals to an abortion clinic.
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