ERISA’s Power to Protect Abortion

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Scholar argues that ERISA limits states’ ability to restrict abortion access.

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Since the U.S. Supreme Court’s decision last year in Dobbs v. Jackson Women’s Health Organization, laws restricting abortion have taken effect in at least 14 states.

But according to Brendan S. Maher, a professor at Texas A&M University School of Law, abortion access can still be protected by an unlikely source of federal law: the Employee Retirement Income Security Act of 1974 (ERISA).

ERISA is the federal statute that sets minimum standards for employer-provided pensions, health care, and benefit plans. Presently, about 155 million people receive health benefits through ERISA plans. Because abortion is a medical procedure or process, Maher shows how state laws regulating abortion interact with ERISA plans that provide for abortion care. He concludes that ERISA may ensure that costs for out-of-state abortions will be covered and that decisions about abortions must remain private and cannot be reported to government officials, even in the face of state anti-abortion laws that ostensibly require the contrary.

Maher explains that Congress enacted ERISA to ensure that plan participants “would know and get what they were entitled to with little risk of eleventh-hour rug-pulling.” Apart from setting minimum participation standards—compliance with which yields employers significant tax breaks—Congress left the power to negotiate the terms of ERISA plans to employers and their employees. In this vein, Congress provides that only the federal government—and not state governments—can regulate ERISA plans.

ERISA plans are administered by fiduciaries who must manage and enact the plan in accord with legal and ethical obligations. Among these duties, ERISA explicitly mandates that fiduciaries follow written plan documents without exception to ensure beneficiaries receive what they are entitled.

ERISA also contains a provision that establishes express preemption over state laws that conflict with ERISA’s contents or purpose, with limited exceptions. Moreover, Maher explains that the Supreme Court has made clear that ERISA can also nullify state laws through implied preemption.

Express preemption occurs when a state law “relates to” employee benefit plans, such as by immediately and exclusively regulating them, whereas implied preemption occurs when a state law that falls outside this scope. As a result, ERISA may overcome state laws—both those that fall within and outside the scope of employee benefit plans—that restrict individuals’ right to abortion.

Anti-abortion legislation across the states takes many forms. Maher classifies these state restrictions into four categories.

First, he explains that “direct” laws comprise prohibitions on obtaining or providing an abortion within a state. Second, states adopt “insurance” laws, which bar insurers from covering abortion expenses within a state. Third, “reporting” laws compel individuals to report pending or completed abortions as a form of policing. Finally, “aiding and abetting” laws proscribe individuals or entities from facilitating abortion, for example, through payment.

Maher argues that, where written ERISA plans provide abortion benefits, neither reporting laws nor aiding and abetting laws can interfere. He posits that ERISA is likely to preempt these types of laws because they impede participants’ ability to receive their benefits—in other words, they frustrate ERISA’s purpose.

Maher uses Texas legislation known as SB 8 as an example of an aiding and abetting law that ERISA would likely preempt. SB 8 allows individuals to seek damages against individuals who perform or aid abortion after detection of a fetal heartbeat. According to Maher, because SB 8 exposes ERISA fiduciaries to threat of liability and damages, it is disruptive to Congress’s regulatory framework. “Bounty hunter” laws such as SB 8 “reduce the likelihood that employers will offer plans and that competent fiduciaries will serve,” Maher argues. Moreover, provisions that shield litigants from shouldering costs—such as SB 8’s bar against awarding legal fees to successful defendants—can disrupt ERISA plans because they remove a deterrent against filing speculative or frivolous lawsuits.

On the other hand, Maher concedes, direct laws and insurance laws are likely to prevail despite ERISA. These state laws likely fall into those categories of laws that are saved from preemption.

Maher reminds readers that the Supreme Court has “vigorously emphasized” that delivery of plan benefits as promised is the heart of ERISA’s regulations. Although ERISA cannot resurrect Roe v. Wade, which protected the right to abortion, it does stand to serve as some protection for individuals in all 50 states, concludes Maher.