Experts warn companies paying for employees to travel for abortions are at risk for lawsuits, criminal penalties
CLEVELAND, Ohio (WOIO) - Abortions in Ohio are now illegal once a fetal heartbeat can be detected. Now that Roe v. Wade is no longer the law of the land companies across the country are vowing to help their employees get access to safe, legal abortions in other states. Experts say this could open these companies up to lawsuits and even put them at risk for criminal liability.
The Cleveland Cavaliers are the latest group to cover travel costs for any of their employees who need an abortion. Dozens of other companies have promised to do the same. Cleveland attorney Susan Moran says these companies are putting themselves at risk for a lawsuit.
“The theory is kind of like an aiding and abetting theory from a criminal standpoint, and at least in the law in Ohio, revised code sets out, you know, specific conduct,” explained Moran. “Basically, you know, it’s kind of what you would believe, aiding and abetting, you know, did you help provide funds, did you help provide transportation, you have to be, however, operating with the same, it’s called mens rea, to commit the crime. Now, that’s not going to be that difficult of a threshold to make, you know, if they’re providing funds for a service that now has been banned, that pretty much can be easily satisfied.”
Moran says major companies like Amazon and Netflix will be much more protected than small and mid-sized companies because of a federal statute – the Employee Retirement Income Security Act of 1974 also known as ERISA.
“There have been some holdings from courts that basically say to states, you’re not allowed to have a say, in what goes in our healthcare plan and so that’s what I’m reading, I’m seeing a lot of these companies are saying we’re making it part of our health care plan,” Moran said.
According to reports, roughly 60% of employers use this type of insurance.
“I think what’s going to be very interesting is what happens to the little guy, what happens to the self-insured little guys,” Moran said.
Moran says since healthcare information is protected under HIPAA all of this will be difficult to prove.
“I can’t conceive of a way you’re going to pierce HIPAA to that end,” explained Moran. “They clearly haven’t worked out; they haven’t thought this through. I mean, this is just the initial hurdle. There are many, many, many more hurdles that are in place.”
Lawmakers in Texas have already said they plan to introduce legislation that would ban companies from doing business in Texas if they pay for their employees to get abortions out of state.
“People can make bad laws all the time, you know, legislatures make bad laws,” said Moran. “So, what will happen with these bad laws that will be the interesting take on this. I think policing this is going to also be very interesting. Are we going to have police and detectives following women into these clinics? And, you know, you went in pregnant, you came out not pregnant. I mean, so I just, this is gonna be a nightmare to police.”
Moran said even women traveling to get abortions could be at risk in Ohio.
“They should be concerned,” said Moran. “Obviously, Ohio hasn’t really changed their laws too much. But if they start becoming, you know, aggressive, then yes, and nobody, no one is 100%. Safe. Even these ERISA companies are not 100% safe.”
Moran also pointed out that 1/3 of American workers aren’t covered by ERISA, not to mention the people who are unemployed. So even though some big companies are offering this to their employees, a lot of other people won’t have these options.
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