Supreme Court's Overruling of Roe v. Wade Raises Health Plan and Employment Implications | Practical Law

Supreme Court's Overruling of Roe v. Wade Raises Health Plan and Employment Implications | Practical Law

In a highly anticipated ruling, the US Supreme Court has held that there is no constitutional right to abortion. The ruling, which overturns Roe v. Wade (1973) and Planned Parenthood of Southeastern Pennsylvania v. Casey (1992), has important implications for employers as sponsors of workplace health plans.

Supreme Court's Overruling of Roe v. Wade Raises Health Plan and Employment Implications

by Practical Law Employee Benefits & Executive Compensation
Published on 28 Jun 2022 • USA (National/Federal)
In a highly anticipated ruling, the US Supreme Court has held that there is no constitutional right to abortion. The ruling, which overturns Roe v. Wade (1973) and Planned Parenthood of Southeastern Pennsylvania v. Casey (1992), has important implications for employers as sponsors of workplace health plans.
In a highly anticipated ruling, the US Supreme Court has held that there is no constitutional right to abortion (Dobbs v. Jackson Women's Health Org., 142 S. Ct. 2228 (2022)). The Court's Dobbs ruling, which overturns its decisions in Roe v. Wade (410 U.S. 113 (1973) (Roe)) and Planned Parenthood of Southeastern Pennsylvania v. Casey (505 U.S. 833 (1992) (Casey)), has important implications for employers as sponsors of workplace health plans.
For more information, see Abortion and Contraceptives Services for Group Health Plans Toolkit.

Mississippi Law Bans Abortions After 15 Weeks

As background, the Supreme Court held in Roe that the Constitution confers a right to obtain an abortion. In reaching this conclusion, the Court relied on prior decisions recognizing a constitutional right to privacy which—in the Roe Court's view—encompassed the right to terminate a pregnancy through abortion. Regarding states' ability to regulate abortion, the Court established the following three-trimester framework that attempted to balance the competing interests of individuals and the states:
  • Before the end of the first trimester, a state could not regulate abortion.
  • After the first trimester but before the fetus was viable, a state could impose regulations that reasonably related to its interest in protecting maternal health.
  • After the fetus was viable, a state could regulate or prohibit abortion, including to protect the fetus's life, and except where necessary to preserve the mother's life or health.
Almost 20 years later, the Court decided Casey. Citing the need to follow established precedent (the legal doctrine of stare decisis), the Casey Court retained and reaffirmed Roe's central holding that the Constitution includes a right to abortion. However, Casey replaced Roe's trimester approach with a standard based on viability. Under the Casey test, states could not impose an "undue burden" on a woman's right to seek an abortion prior to a fetus becoming viable. An undue burden was one that created a substantial obstacle for a woman seeking an abortion. After the fetus became viable, states could regulate or prohibit abortion, except where necessary to preserve the mother's life or health.
The Dobbs litigation arose from a dispute involving Mississippi's Gestational Age Act, which bans abortion of a fetus having a gestational age of at least 15 weeks, except in medical emergencies or cases involving a severe fetal abnormality (Miss. Code Ann. § 41-41-191). An abortion clinic and one of its doctors sued Mississippi officials, challenging the law's constitutionality. A district court ruled in favor of the clinic and provider and enjoined enforcement of the law. The Fifth Circuit affirmed on appeal, and the Supreme Court agreed to hear the case.

No Constitutional Right to Abortion

A five-to-four majority of the Supreme Court concluded that there is no right to abortion under the Constitution and held that Roe and Casey must be overruled.

Due Process Clause Analysis

The majority in Dobbs first criticized Casey for upholding Roe's central holding, based on stare decisis, without considering Roe's soundness. Accordingly, the Court revisited the question of whether the Constitution protects a right to abortion.
The majority observed that the Constitution does not expressly mention a right to obtain an abortion. The Court noted that the Due Process Clause of the Fourteenth Amendment protects a right not expressly identified in the Constitution if it is "deeply rooted in this Nation's history and tradition" and "implicit in the concept of ordered liberty."
Disagreeing with the Roe Court, however, the Dobbs majority concluded that the right to abortion is not deeply rooted in the nation's history and tradition. In reaching this conclusion, the Court reviewed early common law and statutes criminalizing abortion. The Court noted that when the Fourteenth Amendment was adopted in 1868, three-quarters of the states criminalized abortion at any point during pregnancy. In addition, no state or federal courts recognized a constitutional right to abortion until a few years before the Roe decision. When Roe was decided, the majority added, 30 states prohibited abortion at any point during pregnancy unless it was to save the mother's life. According to the Court, Roe "ignored or misstated this history."
Proponents of Roe and Casey argued that abortion is part of other recognized rights, such as the right to privacy or the right to make "intimate and personal choices" that are central to individual dignity and autonomy. In its analysis of rights that are protected by the Fourteenth Amendment despite not being mentioned in the Constitution, the Casey Court cited cases addressing the rights to:
  • Marry a person of a different race or while in prison.
  • Make educational decisions for one's children.
  • Use contraceptives.
In the Dobbs Court's view, however, these cases were distinguishable because they did not involve moral questions of the same caliber as those raised by abortion.
The Court also rejected the suggestion by amici curiae that the abortion right could be grounded in the Fourteenth Amendment's Equal Protection Clause. In doing so, the Court reasoned that:
  • Neither Roe nor Casey relied on this theory.
  • The Court's precedents established that abortion regulations are not a classification based on sex, and therefore are not subject to heightened scrutiny.

Stare Decisis Factors Weighed in Favor of Overruling Roe and Casey

Having concluded that the Constitution does not protect a right to abortion, the Dobbs Court addressed whether stare decisis principles warranted continuing to follow Roe and Casey. The Court noted that stare decisis is weakest when the court is interpreting the Constitution. Its discussion also highlighted the importance of overruling wrongly decided decisions, such as Plessy v. Ferguson (163 U.S. 537 (1896)).
In the Court's view, five factors weighed in favor of overruling Roe and Casey:
  • Nature of the error. Regarding this factor, the Court called Roe "egregiously wrong and deeply damaging." In the Court's view, Roe deprived individuals of the right to address the important matter of abortion through the democratic process.
  • Quality of the reasoning. The Court criticized Roe for failing to base its decision on text, history, or precedent. Additionally, the Court noted that the three-trimester framework developed in Roe was not raised by any of the parties or based on any source. In the Court's view, the trimester test read more like a statute or regulation. The Court reasoned that the poor quality of the Roe decision was evidenced by the fact that the Casey decision abandoned the trimester framework and much of the reasoning. The Court criticized Casey for its arbitrary undue burden test and "exceptional" use of stare decisis.
  • Workability of the rules imposed by the court. According to the Court, Casey's undue burden test was unworkable because it was ambiguous and difficult to apply. The Court noted that the circuit courts have struggled to apply the test, creating circuit conflicts and unpredictable outcomes.
  • Effect on other areas of law. The Court also reasoned that abortion cases following Roe and Casey have ignored or had a negative effect on various doctrines (for example, the standard applicable to facial constitutional challenges, third-party standing, severability of unconstitutional provisions, and the First Amendment).
  • Reliance interests. Regarding the last factor, the Court concluded that overruling Roe and Casey would not disrupt substantial reliance interests. As the Casey Court acknowledged, an abortion is typically not planned, and individuals could promptly respond to new abortion bans with reproductive planning.
As a result, the Court overruled Roe and Casey.

Gestational Age Act Survives Rational Basis Review

Having concluded that the Constitution does not protect a right to abortion, the Dobbs Court held that rational basis review—rather than strict scrutiny—governed the challenge to Mississippi's abortion law. (Under the relatively deferential rational basis standard, courts uphold a law if there is a rational connection between the law and a legitimate government interest.) The Court identified several legitimate government interests that could support Mississippi's law, including preserving prenatal life, protecting maternal health, and preserving the integrity of the medical profession, among others. In the Court's view, these interests provided a rational basis for the Mississippi law, which therefore survived constitutional challenge.

Concurring and Dissenting Opinions

One justice (Thomas) concurred in the majority opinion but wrote separately to express his view that the Fourteenth Amendment's Due Process Clause does not protect any substantive rights. He urged the Court to revisit its substantive due process precedents in future cases.
Another justice (Kavanaugh) agreed with the majority that there is no constitutional right to abortion and that Roe and Casey should be overturned. In a concurring opinion, he indicated that the Constitution is neutral on the subject of abortion and, as a result, the Court must also be neutral on the issue. In his opinion, overturning Roe restored the Court to a position of neutrality and left the issue of abortion to the people and their elected state representatives. Justice Kavanaugh also noted his belief that a state may not bar one of its residents from traveling to another state to obtain an abortion (that is, under the constitutional right to interstate travel).

Chief Justice: A More Measured Approach

Chief Justice Roberts concurred in the judgment, noting that the Court agreed to decide the narrow issue of whether all pre-viability prohibitions on elective abortions are unconstitutional. Although he agreed that the viability standard was baseless and should be abandoned, the Chief Justice disagreed with overruling Roe in its entirety. In Roberts's view, Roe established the following two distinct rules of constitutional law:
  • A woman has the right to choose to terminate a pregnancy.
  • This right may be overridden by a state's legitimate interests when the fetus is viable outside the womb.
Roberts would have abandoned the latter (viability/timing) rule, but not the basic right to terminate a pregnancy. Under the Chief Justice's approach, any constitutional right to abortion would end once a woman had a reasonable opportunity to obtain an abortion. Under this approach, the Mississippi law would survive a constitutional challenge.

Dissent

According to the three dissenting justices (Breyer, Sotomayor, and Kagan), Roe and Casey struck a proper balance between the competing interests at issue. The dissenting justices:
  • Criticized the majority's focus on whether the right to abortion existed when the Due Process Clause was adopted.
  • Expressed concern for how the majority's decision would impact other rights protected under the Court's substantive due process precedents.
Additionally, the dissent would have upheld Roe and Casey on the basis of stare decisis. In their view, there have been no significant legal or factual changes since Roe and Casey that warrant disturbing those decisions. The dissent disagreed with the majority's analysis regarding the workability of Casey's undue burden test and the reliance interests impacted by its decision.

Practical Impact

Employer-Sponsored Health Plans

Since the media obtained a leaked draft of the Dobbs ruling in early May, some employers—as plan sponsors of workplace health plans—have been considering their plan design options in the event that the official ruling reached the same conclusion (that is, overruling Roe and Casey) as the draft. In particular, some employers have been reviewing their plans' existing coverage of elective abortions and considering whether to reimburse travel expenses for abortions received in other states (if a forum state imposes restrictive abortion rules). Shortly after the official Dobbs ruling was issued last week, some major US employers began announcing that they would reimburse the costs of employees who must travel to receive an abortion.
How to structure travel-related expenses for abortion (for example, mileage, airfare, travel, and lodging) may present challenging plan design questions. Among other issues, some employers are considering whether:
In general, by overruling Roe and Casey, the Dobbs Court has returned the regulation of abortion to the individual states, some of which have enacted trigger laws that will restrict or prohibit abortion, subject to exceptions. For employer-sponsored health plans, however, some of the state laws regulating abortion may be preempted by ERISA. Whether these laws are ERISA-preempted may depend in part on how an employer’s plan is funded (that is, insured or self-funded). For more information, see:
And despite the majority opinion's assurances that its Dobbs ruling should not cast doubt on other Supreme Court rulings that do not involve abortion, it would seem likely that future plaintiffs will take up Justice Thomas's invitation to reconsider the Court's other substantive due process holdings. Notably, from a benefits perspective, these precedents include the Court's Obergefell holding and same-sex benefits (Obergefell v. Hodges, 576 U.S. 644 (2015); see Legal Update, Supreme Court's Recognition of Same-Sex Marriage Raises Benefits and Employment Law Issues and Same-Sex Marriage Developments for Retirement Plans Toolkit).

Labor and Employment

The Dobbs decision did not materially change the landscape of labor and employment law. However, employers should be reminded of their obligations under federal anti-discrimination and other labor and employment laws. In 1978, the Pregnancy Discrimination Act (PDA) extended Title VII's protections against discrimination, harassment, and retaliation based on sex to include pregnancy, childbirth, and related medical conditions, which can include abortion. Per EEOC guidance on the PDA and certain circuit court decisions, employers cannot fire or refuse a job or promotion to an employee based on having or contemplating having an abortion. Employers should also be prepared to appropriately address employee reactions to the decision by reviewing their social media and dress code policies, together with balancing the National Labor Relations Act's protection for employees to discuss their employment terms and conditions. Finally, employers should be reminded of their obligations under Title VII not to discriminate based on religion since religious discussions may result from this decision. For more information on the PDA and the NLRA, see Practice Notes, Pregnancy Discrimination and Employee Electronic Communications Under the National Labor Relations Act.