4 Employment and Professional Liability Risks to Watch After the Dobbs Decision
Employers: think the Supreme Court’s recent decision to overturn Roe v. Wade doesn’t affect you? Think again.
In the weeks since the Dobbs v. Jackson Women’s Health Organization decision was released, 22 states have either passed new laws or have pre-Roe laws on the books that could be used to restrict a woman’s ability to have an abortion, the Guttmacher Institute reports. A number of other state legislatures are currently considering legislation that would restrict abortion rights, per the Washington Post.
These laws could have ripple effects for employee benefits, professional liability and workplace discrimination.
Health plans that previously covered all forms of reproductive care, for instance, would have to be changed and employers who try to introduce new benefits so that their employees can afford to travel out of state for the procedure could face legal challenges.
Hospitals and medical professionals face even more risk as they may delay care for women seeking life-saving procedures that lawmakers consider abortions. If they act in the best interest of the patient, they could face criminal charges. If they try to seek legal counsel and fail to swiftly treat the patient, they could be hit with medical malpractice lawsuits.
As companies and their insurers try to navigate the murky waters ahead, here are four risks you need to stay abreast of.
1) Medical Malpractice Lawsuits
Doctors and hospitals face perhaps the biggest professional liability risk as a result of the Dobbs decision.
Reports have already emerged of hospitals delaying treatment for life-threatening conditions because they could be considered abortions. Treatments for miscarriages and ectopic pregnancies in particular have been delayed due to state abortion bans, Today reports.
“I don’t think as long as I’ve been in health care, it’s been this up in the air in terms of people being frightened to provide care for fear of some kind of criminal charge,” said attorney Aileen Brooks with the firm Malecki Brooks.
In these types of high-stakes medical emergencies, any delay in care can result in negative health outcomes for the mother. Ectopic pregnancies are particularly dangerous because in those instances a fertilized egg implants outside the uterus, most commonly in a fallopian tube. As the egg starts to grow, it will cause the tube to rupture, killing the mother. These types of pregnancies are never viable.
Among the issues doctors must navigate with extreme care is the language used in “heartbeat bills.” While ectopic pregnancies pose danger to the mother before an embryo forms cardiac valves or a cardiovascular system, the presence of detectable electrical activity in the developing cells is considered a “heartbeat” in some states.
“You’ve got a fetus in a fallopian tube. The heart is still beating. That is a medical emergency. That tube ruptures, you can die,” Brooks said. “So patients are getting complications from waiting for so long to do something.”
Those cases could result in medical malpractice lawsuits if a woman develops complications due to the delay in treatment. “If there’s any injury to the mother, then that might be a basis for a malpractice action,” said attorney Benjamin Fenton of Fenton Law Group.
“It’s going to be really important for hospitals to decide ahead of time — like now — how they want to handle those types of cases,” added attorney Melinda Malecki, of Malecki Brooks.
“Time is of the essence. I think coming up with some guidelines or policy on how those cases should be handled, at least for now, would be a prudent thing for hospitals to do.”
Doctors who act swiftly in these cases to avoid malpractice suits should make sure they are documenting the reasoning behind their decisions.
“The physician would have to be very careful about documenting how that decision was made. You would have to do that in conjunction with legal counsel. Maybe even get a court order, if they have time to go down that route,” Malecki said.
Physicians may also be accused of malpractice if they refuse to prescribe certain medications to women of child-bearing age even if they’re being used to treat other conditions. Patients with cancer, rheumatoid arthritis or lupus may be taking drugs that could be used to induce an abortion.
“A physician owes a duty to their patients,” Fenton said. “But if the law prohibits a physician from doing something then that is a strong defense for a physician against any malpractice claims. So it is really important that physicians analyze these laws in this changing legal landscape.”
2) Abortion Travel Benefits: A Risky Path for Employers
In the wake of the Supreme Court’s ruling a number of employers located in states that enacted abortion bans announced that they would offer abortion travel benefits to employees in states where abortion is illegal. Companies ranging from Tesla to Dick’s Sporting Goods have spoken out on the issue, Reuters reported.
“Travel benefits are accepted under most health plans already,” said John Greenbaum, national employee benefits practice leader at Risk Strategies.
“Typically, travel benefits have not been for restricted coverages, but more related to the unavailability of services, for instance the need to move an employee to a Center of Excellence. So if somebody’s having a heart transplant and they’re in a rural environment, the health plan will often provide a travel benefit to bring them to a Center of Excellence that is quite accustomed to doing those types of major surgeries.”
Companies offering these benefits could run afoul of state laws and face legal actions. Employers should be especially concerned about states like Texas and Oklahoma where people who aid in or have an abortion themselves can face civil suits.
“There are a couple of states, notably, I think Texas and Oklahoma that have used language like ‘aiding and assisting in interstate travel for the purposes of obtaining an abortion’ that suggests they would deem those criminal activity and look potentially to bring legal action against employers who sponsored this sort of thing,” John Greenbaum said.
“The Texas Legislature has empowered any individual in the state to bring civil actions against anyone who assists a person in the state of Texas in obtaining an abortion, including paying for insurance and travel,” added Pam Moore, an employment attorney with McCarter & English.
We’ll have to wait for litigation to play out before we know the true risks employers face by offering abortion travel benefits.
“I’m waiting for the first litigation to be done and I would suspect it’s going to be Texas because the largest law firm [in the state] announced that it was going to provide abortion travel benefits to its female employees,” Moore said.
“It thumbed its nose at the state legislature. So, I would anticipate that litigation quickly in Texas.”
“This is going to churn through the courts for a long time,” Greenbaum added. “Employers entering into these sorts of arrangements should certainly consider both legal guidance and talking to their benefits advisors as well.”
3) Fertility Benefits Could Be Caught in the Crosshairs
Employers offering fertility assistance benefits in states with abortion bans may need to rework their policies as IVF treatements and other fertility benefits may be illegal under abortion bans that define a fertilized egg as a life.
“States with more restrictive laws on termination and definition of embryos may be impacting the process and certainly increase patient anxiety and planning,” said Peter Nieves, chief commercial officer at WINFertility, a family-building benefits company.
Employers may not be as likely to face legal actions, but they may want to preserve their benefits by offering travel benefits to employees who may need to leave the state for IVF.
“Patients are looking for fertility services in nearby states that are not restrictive and transferring embryos when possible to storage facilities in non-restrictive states,” Nieves said.
“The Dobbs decision creates additional consideration for providing patient advocacy and allowances for travel and transportation.”
4) Discrimination Claims
Beyond the legal risks of adopting abortion travel benefits in and of themselves, employers may face discrimination claims from employees as a result of the benefits.
These cases could fall into two categories: lawsuits from employees alleging religious discrimination due to the benefit and those from workers who believe the benefits are arbitrarily being applied.
In the case of employees who oppose abortion on religious grounds and allege discrimination, Moore believes that “there really isn’t a whole lot of other bases for claiming discrimination” just because a particular benefit is offered.
Think of it like holiday benefits. An employer isn’t discriminating against Jewish employees just because they give everyone Christmas off. If an employee objects to abortion on moral or religious grounds, they don’t have to use the benefit.
In terms of unequal or arbitrary distribution of benefits, an employee may claim that they are being discriminated against because an abortion travel benefit only applies to a particular procedure. If they wanted to travel out of state for another type of medical procedure, it may not be covered, thus leading to a lawsuit alleging violations of ERISA.
“There is a section of ERISA that says you can’t arbitrarily provide benefits to one person over another,” Moore explained.
Companies may try to skirt this issue by providing blanket medical procedure travel benefits, especially since it’s a common component of health plans, per Greenbaum. That way, the benefit applies equally to all employees, reducing the risk of discrimination claims.
“Some employers are concerned that by providing travel benefits for abortions, they may be discriminating against others based on their particular medical conditions. So they’re broadening their travel benefit policy,” Moore said.
This move can also insulate employers against some of the legal risk of offering abortion-specific travel benefits as well.
Of course, some companies may decide it’s worth the legal risk to take a strong stance on the issue. Younger employees in particular have pressured their employers to take a stance on a whole host of political issues over the last few years. With looming fears over the Great Resignation, corporations may decide it’s worth it to take a stronger stance.
“Millennials and Gen Z want companies to take political stances and they’re willing to walk if the company is not is not ideologically aligned with their point of view,” Moore said. &