The threat of abortion-related legal liability in Texas has raised hard-to-answer questions about companies’ plans to help employees travel for out-of-state procedures, including the amount of sensitive information about employees that a company could be compelled to disclose in court.
Following the US Supreme Court’s decision last month to strike down the constitutional right to abortion, 26 states have banned or should ban most abortions, according to the Guttmacher Institute, a research group that supports the right to abortion. In response, a long list of major U.S. employers and major law firms announced they would provide travel reimbursement or other benefits to employees who cannot access abortion services in their home countries. .
Texas is at the center of the battle for abortion rights, drawing attention last year to a new whistleblower-style law (SB 8) that allows an individual to sue anyone who “aids or abets” an abortion and receives a $10,000 reward. Now, a group of conservative Texas lawmakers are warning employers who offer travel assistance or health care benefits for abortion procedures or medications that they could be sued and also face criminal charges.
In a July 7 letter, members of the Texas Freedom Caucus accused the law firm Sidley Austin LLP of aiding in illegal abortions since September 1, 2021, when SB 8 went into effect, and instructed the firm to retain all related documents or records.
At least parts of the Freedom Caucus letter are likely hyperbole, but the legal risks described therein cannot be ignored, said Timothy Verrallemployment attorney with Ogletree, Deakins, Nash, Smoak & Stewart PC in Houston.
Some major employers have “rightly viewed this letter as a sort of performative on behalf of this group,” he said. “That doesn’t mean they shouldn’t be taken seriously. I’m afraid they have points or at least arguments that aren’t crazy under the law.
In addition to employee privacy issues, it’s also possible that employers who make abortion-related aids available could be sued or prosecuted in Texas even if no employees use those benefits, said Rebecca Parma, senior legislative associate. for Texas Right to Life.
“The fact that the intent is clear there might mean you don’t need an example,” she said, adding that the group was not aware of any complaints filed against employers. from Texas so far.
Meanwhile, Republican leaders in Texas are fighting federal efforts to protect access to abortion. Attorney General Ken Paxton (R) filed a lawsuit on Thursday challenging a new Biden administration health regulation directing doctors and hospitals to fulfill their duty under federal law to provide life-saving medical care or emergency trumps state abortion bans.
Exceptions to Privacy Law
Employee health information held by a corporate health plan is extensively protected by privacy laws such as the Federal Health Insurance Portability and Accountability Act. But HIPAA has exceptions that allow the disclosure of information for law enforcement purposes, with the permission of the employee but also without permission in certain cases, such as where there is a court order, warrant or subpoena requiring disclosure.
How the courts apply these exceptions in abortion cases against Texas employers will make a big difference to employee privacy, as well as the ability of employers to offer abortion-related assistance without legal repercussions.
“If things go wrong, certainly in the criminal context, they will have access to at least some information. That’s probably also the case in a civil proceeding,” Verrall said. Sensitive records are likely to be released to court under seal, protected from becoming public records, he added.
Many companies offering health benefits that could help abortion seekers frame it as reproductive health care, so the use of those benefits isn’t tied to any particular procedure, according to Scott Weinstein, a partner in the law firm McDermott Will & Emery. This would make it more difficult for a company to provide law enforcement with records on which employees used reproductive health benefits for an abortion.
“The goal is not to know,” Weinstein said.
Companies could also design their health-related travel reimbursement policies to not require the collection of sensitive destination data, such as receipts, he said.
For large corporations, which often have self-funded health plans governed by the Employees Retirement Income Security Act, this federal law takes precedence to some degree over state regulation of health benefits.
Appetite for pursuits
It remains to be seen how far law enforcement can go to find suspected abortions in a state like Texas that has threatened to sue employers with reproductive health benefits. One question is whether law enforcement would ask to search medical records only for specific people accused of terminating their pregnancies, or whether authorities would search for anyone who enjoyed a reproductive advantage to try to find suspicious abortions.
“Just because a perk is offered doesn’t mean someone has used it,” said Sheila Sokolowski, partner at Hintze Law PLLC. If a company pushes back a data request in court, judges could step in and stop law enforcement from going on “fishing expeditions,” Sokolowski said.
Sara Spectorcriminal defense attorney in Midland, Texas, and former prosecutor, agreed that the extent of criminal prosecutions against employers and demands for employee information will largely depend on the aggressiveness of the district attorneys most state curators.
“If there is a grand jury subpoena, they will have no recourse,” she said. “It’s just open season in Texas.”
Tougher proposals to come
If conservative state lawmakers are successful, Texas laws punishing abortion assistance could become even tougher next year.
The 2021 Civil Enforcement Act, SB 8, allows anyone in the United States to sue any person or entity for assisting with an abortion, but its application to out-of-state abortions might be limited.
SB 8 refers to “aiding and abetting the abortion provider to perform the abortion,” said Rachel Rebouché, professor of law and acting dean of the Beasley School of Law at Temple University. “Language does not help or encourage the patient.”
Under Texas law, abortion providers are defined as those who practice under license in the state, so it wouldn’t apply to out-of-state providers, she added.
Regarding criminal prosecutions against employers, the Texas Freedom Caucus pointed to existing Texas laws that were on the books before the Supreme Court. Roe vs. Wade decision in 1973 but which have not been implemented for decades.
While conservative lawmakers argue that these laws are still available to prosecute accomplices in illegal abortions, they also said they plan to bolster the state’s ability to prosecute through legislative proposals such as letting district attorneys pursue business anywhere in the state. This could prevent more progressive local DAs from stopping enforcement of the abortion ban in their jurisdictions.
The proposals are likely to create tension between social-conservative Republicans and the party’s more business-friendly wing in the 2023 legislative session, which begins in January.
“The right wing of the party does not set the agenda,” said Joshua White, research director at the Texas Politics Project at the University of Texas at Austin. “Having said that, you can’t look at what passed in the last legislative session in Texas and look at the next session and think that everything is necessarily irrelevant.”