ERISA Preemption and Post-Dobbs Abortion Coverage for Employer-Sponsored Health Plans

Practical Law Article w-035-7879 (Approx. 19 pages)

ERISA Preemption and Post-Dobbs Abortion Coverage for Employer-Sponsored Health Plans

by Practical Law Employee Benefits & Executive Compensation

Key ERISA Preemption Principles

One of ERISA's primary policy objectives is to make the regulation of employee benefit plans, including employer-sponsored health plans, a matter of federal law so that plans are:

Subject to a uniform body of federal laws.
Not governed by a patchwork of conflicting state laws.

To achieve this objective, ERISA includes a broad preemption provision that generally supersedes state laws that "relate to" employee benefit plans (ERISA § 514(a) (29 U.S.C. § 1144(a))). ERISA's definition of state law for this purpose is broad and includes "all laws, decisions, rules, regulations, or other [s]tate action having the effect of law, of any [s]tate" (ERISA § 514(c)(1) (29 U.S.C. § 1144(c)(1))).

However, under an exception to ERISA's general preemption rule, laws that regulate insurance (in addition to banking and securities) are saved from preemption (ERISA § 514(b)(2)(A) (29 U.S.C. § 1144(b)(2)(A))). This exception to ERISA's general preemption rule is known as the saving clause. Several Supreme Court decisions and lower federal court rulings have addressed the scope of ERISA's saving clause for insurance laws (for example, see Ky. Ass'n of Health Plans, Inc. v. Miller, 538 U.S. 329 (2003); see also Practice Note, ERISA Litigation: Preemption of State Laws: Overview: Saving Clause Exception and ERISA Litigation Toolkit).

In addition, under an exception to the saving clause exception, an ERISA plan generally cannot be deemed to be an insurance company or insurer for purposes of laws that regulate insurance companies (ERISA § 514(b)(2)(B) (29 U.S.C. § 1144(b)(2)(B))). Therefore, although a self-funded health plan may have many attributes of insurance coverage, the plan is not deemed to be insurance for savings clause purposes. This exception to the saving clause exception is known as the deemer clause.

Due to the interaction of ERISA's general preemption rule, its saving clause, and the deemer clause, how an employer funds its health plan may have a significant effect on the extent to which the plan is subject to state laws that prohibit or restrict abortion.

Meaning of "Relates to" and "Connection with" Preemption Provisions

Recognizing that the "relates to" language in ERISA's preemption provision is not limitless, the Supreme Court's rulings have described two categories of state laws that are preempted by ERISA. First, ERISA preempts state laws that have a reference to ERISA-governed plans. Specifically, a state law has a reference to ERISA plans if either:

The law acts immediately and exclusively on ERISA plans.
The existence of an ERISA plan is essential to the law's operation.

Second, ERISA preempts state laws having an impermissible connection with ERISA plans. For example, this may include state laws that either:

Govern a central matter of plan administration.
Interfere with nationally uniform plan administration.

(See Egelhoff v. Egelhoff, 532 U.S. 141, 148 (2001).)

A state law also may have an impermissible connection with ERISA plans if its "acute, albeit indirect, economic effects" require a plan "to adopt a certain scheme of substantive coverage or effectively restrict its choice of insurers" (N.Y. State Conf. of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 514 U.S. 645, 668 (1995)).

Relates to/Connection with Analysis in Supreme Court's Gobeille Ruling (2016)

The Supreme Court's 2016 Gobeille ruling is a recent example of the relates to/connection with components of ERISA's preemption provision (Gobeille v. Liberty Mut. Ins. Co., 577 U.S. 312 (2016); see Legal Update, Supreme Court Holds That ERISA Preempts State Health Care Reporting Law). In Gobeille, the Court held that ERISA preempted a Vermont law requiring certain entities, which included health insurers, third-party administrators (TPAs), and self-funded health plans, to report information about health care claims and services for inclusion in a state health care database.

Among other information, covered entities were required to submit health care pricing and utilization data to the state and information about individuals' health insurance enrollment and claims. The information was then compiled into an all-payer claims database for use by insurers, employers, providers, and state agencies to review health care utilization, costs, and performance in the state.

The employer/plan sponsor in the case, an insurance company, maintained a self-funded ERISA health plan that was administered by a TPA that was required to report information about the employer's plan to the state. The employer sued the state in federal district court, arguing that Vermont's law was ERISA-preempted as applied to the plan. The district court ruled in the state's favor, finding that the law's effect on health plans was so indirect that it could not be viewed as interfering with the structure or administration of a health plan. However, the Second Circuit reversed and held that the reporting of information about plan benefits was a core ERISA function that must be governed by a uniform federal standard.

Supreme Court: Vermont's Law Is ERISA-Preempted

On appeal, the Supreme Court held that Vermont's state health database law was inconsistent with ERISA's goal of providing a single uniform national scheme for administering ERISA plans and was therefore preempted. After discussing several of ERISA's key reporting (Form 5500 and Schedule H), disclosure, recordkeeping, and related penalty provisions, the Gobeille Court observed that these requirements are central to uniform plan administration and integral to ERISA. The state database law, the Court reasoned, intruded upon ERISA's goal of national uniform plan administration by requiring plans to report detailed information about claims and plan enrollees. In the majority's view, differing (or parallel) requirements from multiple jurisdictions could result in wasteful administrative expenses and subject plans to wide-ranging liability.

In addition, the Court observed that ERISA preemption of state laws, such as Vermont's health database, was necessary to prevent states from imposing "novel, inconsistent, and burdensome" administrative requirements on plans. Under ERISA, the Court noted, decisions involving benefit plan reporting and related requirements are for the federal authorities, not the individual states.

Presumption Against Preemption for Laws Involving State Traditional Police Powers

The Supreme Court has also recognized that a presumption against ERISA preemption exists regarding state or local laws governing matters that fall within a state's traditional police powers (Golden Gate Rest. Ass'n v. City & Cnty. of S.F., 512 F.3d 1112, 1120 (9th Cir. 2008) (analyzing Supreme Court cases regarding this presumption); see Practice Note, ERISA Litigation: Preemption of State Laws: Overview: Ninth Circuit: ERISA Did Not Preempt San Francisco's Fair Share Ordinance). These historic police powers include health and public safety issues (for example, matters affecting the health care industry). Notably, the Dobbs Court took the view that laws regulating abortion, as with other health and welfare laws:

Are "entitled to a 'strong presumption of validity.'"
Must be upheld "if there is a rational basis on which the legislature could have thought that it would serve legitimate state interests."

(Dobbs, 142 S. Ct. at 2284 (internal citations omitted).)

In the ERISA preemption context, this presumption against preemption may cut in favor of state laws limiting the legality of abortion and related services. On the other hand, the Biden administration has issued a post-Dobbs executive order announcing its intent to promote access to reproductive health care services (including abortion) nationwide (see Legal Update, White House Executive Order Addresses Post-Dobbs Access to Abortion and Contraceptives).

Insured and Self-Funded Health Plans

How a health plan pays for benefits (that is, how the plan is funded) has a significant effect on whether ERISA preempts state laws, including state laws regulating abortion, with respect to an employee benefit plan.

Insured Health Plans

When an employer funds its health plan using an insured arrangement, the employer purchases an insurance policy and typically pays all or a portion of the premiums for the health insurance coverage. The insurer in a fully insured health plan, health maintenance organization (HMO), or similar arrangement:

Assumes the risk of providing health coverage for insured events by paying medical costs for eligible claims incurred under the plan.
Usually decides whether benefits are paid to plan participants and beneficiaries.
Administers plan-related claims and appeals (see Practice Note, Internal Claims and Appeals Under the ACA).

The insurance policy an employer purchases to provide benefits generally must be issued by an insurance company that is qualified to do business in a particular state. As a result, benefits under the policy must be provided consistent with governing state law. By application of ERISA's saving clause, these state insurance laws are not ERISA-preempted and therefore indirectly regulate ERISA benefit plans. State insurance laws may address a variety of issues affecting benefit plans, for example:

Mandated benefits (such as required vaccinations or mental health benefits).
Prompt-pay requirements (see Practice Note, ERISA Litigation: Preemption of Select State Laws: Prompt-Pay Laws).
Coordination of benefit (COB) rules (see Standard Clause, SPD Language: Coordination of Benefits).
Health plan continuation coverage rules (see Practice Note, COBRA Overview: State Mini-COBRA Laws and State Mini-COBRA Laws Chart)
External review requirements (see Practice Note, External Review Under the ACA).

By operation of the insurance clause exception to ERISA's general preemption rules, as a result, state insurance code and related requirements that apply to insured arrangements, including laws regulating abortion, derivatively govern employers that choose to sponsor insured health plans (see State Laws Regulating Abortion Vary Greatly). However, the question of whether a state's insurance code provisions can bar health insurers in the state from covering abortion-related benefits obtained by the state's residents outside the state is a gray area that may become the topic of litigation.

Self-Funded Health Plans

In a self-funded arrangement, by contrast, an employer (as plan sponsor) pays for plan benefits from its own assets and generally assumes the risk of doing so. Employers with self-funded arrangements also may obtain stop-loss coverage for large claims above a specified amount (known as an attachment point) (29 C.F.R. § 2520.104-20(b); see Legal Update, Guidance Addresses ERISA Preemption of State Stop-loss Insurance Laws and More). By operation of the deemer clause (part of ERISA's preemption provision), self-funded plans generally are not required to comply with state insurance laws. This offers the plan sponsor of a self-funded health plan significantly more latitude (relative to employers with insured health plans) concerning whether to cover abortion and related services.

Employers that self-fund benefits for abortion services likely can continue to provide that coverage, even in states with insurance laws that prohibit abortion. However, covered participants and beneficiaries in these states may, as a practical matter, lack local access to in-network providers of abortion services. As a result, these individuals may need to travel to other states to obtain abortions and related services, where it may be necessary for these services to be provided by out-of-network health providers (see ERISA Preemption and Abortion-Related Travel and Lodging Reimbursements). (Regarding balance-billing payment restrictions for out-of-network emergency services under the No Surprises Act (NSA) (part of the Consolidated Appropriations Act, 2021 (CAA-21)), see Surprise Medical Billing for Health Plans, Health Insurers, and Health Care Providers and Facilities Toolkit.)

ERISA Preemption and Abortion-Related Travel and Lodging Reimbursements

To assist employees in accessing abortions and related services post-Dobbs, some employers have amended their self-funded health plans to cover travel and lodging expenses for participants who cannot access an abortion in their state of residence or within a specified geographic radius (see Article, Group Health Plan Coverage Considerations for Employers After the Overturning of Roe v. Wade: Adding Travel and Lodging Benefits Under an Existing Group Health Plan). The scope of these travel and lodging expense benefits varies depending on the employer.

Many employers have deliberately included these abortion and related benefits as part of their ERISA health plans (as opposed to using a stand-alone, non-ERISA policy). Doing so may give an employer a stronger ERISA preemption argument in the event of a substantive challenge to the employer's provision of abortion and related services. Such a challenge could be based on state laws attempting to prevent self-funded plans from reimbursing travel, lodging, and related expenses for individuals who obtain an abortion. Specifically, the employer may argue that:

Its abortion-related travel and lodging expense reimbursements are part of an ERISA plan.
The state law on which the challenge is based is therefore ERISA-preempted.

(Relatedly, Justice Kavanaugh suggested (in a concurring opinion in Dobbs) 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) (see Legal Update, Supreme Court's Overruling of Roe v. Wade Raises Health Plan and Employment Implications: Concurring and Dissenting Opinions).)

ERISA Preemption and Aiding and Abetting Laws

An employer with a self-funded ERISA health plan may have a strong argument that ERISA preempts state civil laws prohibiting the aiding and abetting of individuals in receiving a legal abortion. (For example, regarding Texas's aiding and abetting law, which allows private citizens to sue any party that aids or abets performing or inducing an abortion, see Texas Heartbeat Act (Texas S.B. 8).) By contrast, ERISA may offer less preemptive protection if a state's aiding and abetting laws are part of its criminal provisions (see ERISA Does Not Preempt Criminal Statutes of General Applicability). As a result, potential liability under abortion-related aiding and abetting laws that criminalize these actions may be a concern for employers (as plan sponsors), the plan itself, plan fiduciaries, TPAs, and other plan service providers that administer travel and lodging expense reimbursements. (Employer/plan sponsors may be asked to update service provider agreements to indemnify TPAs and others for potential liability from administering abortion-related benefits.)

Under the Supreme Court's "relates to" ERISA preemption analysis, for example, an employer could assert that a state's aiding and abetting law prevents the uniform administration of an ERISA plan because the employer must determine which states' laws have aiding and abetting provisions to avoid violating these provisions by reimbursing abortion-related travel and lodging expenses (if structured as an ERISA benefit). Because there is great variation among state abortion laws, the outcome of ERISA preemption challenges will depend on the specific state law (or laws) at issue.

Example of Potential Litigation Involving Abortion-Related Coverage

Assume that Employee A is an employee of the JKL Corporation, which is headquartered in Dallas, Texas, but has operations in all 50 states. Employee A, who resides in Dallas, is eligible for coverage under the JKL Health Plan, a self-funded arrangement that:

Is sponsored by the JKL Corporation.
Covers abortion and includes a travel benefit that reimburses transportation and lodging expenses (subject to specified limits) when travel is required to receive certain medical services, including for abortion, due to care access limitations.

In August 2022, Employee A travels to New York (where abortion is generally permitted within 24 weeks from the beginning of a pregnancy) and receives an abortion that is legal in New York but that would have violated Texas S.B. 8 had it been performed in Texas. The JKL Health Plan, through its service provider, TPA Inc., covers Employee A's abortion and reimburses Employee A's transportation and lodging for the abortion subject to applicable plan limits.

Citizen X learns of Employee A's abortion and brings a civil action against the JKL Health Plan, the JKL Corporation, and TPA Inc. (collectively, Defendants) in Texas for aiding and abetting an abortion—including paying for or reimbursing the costs of an abortion through insurance or otherwise (see Texas Heartbeat Act (Texas S.B. 8)).

Invoking the Supreme Court's ERISA preemption principles, the Defendants in this example may have a strong argument that ERISA preempts Texas S.B. 8, as applied, because the law governs a central matter of plan administration of the JKL Health Plan and interferes with nationally uniform plan administration. For example, the law operates to prevent the plan from reimbursing covered benefits under the express terms of the JKL Health Plan (a central matter of plan administration). Texas S.B. 8 also interferes with nationally uniform plan administration in that, for example, JKL Corporation employees in California and New York could receive legal abortions in those states, respectively, without exposing the Defendants to legal exposure for aiding or abetting abortion.

Moreover, the Defendants could likely assert that Texas S.B. 8 makes an impermissible reference to an ERISA plan by expressly prohibiting paying for or reimbursing the costs of an abortion through insurance or otherwise, which implicates health plan reimbursements. In this regard, Texas S.B. 8 is arguably more invasive than regulations the Supreme Court upheld (as general cost regulation provisions) in a 2020 ruling holding that ERISA did not preempt an Arkansas law intended to regulate the conduct of pharmacy benefit managers (Rutledge v. Pharm. Care Mgmt. Ass'n, 141 S. Ct. 474 (2020); see Legal Update, Supreme Court: Arkansas PBM Law Is Not ERISA-Preempted).

ERISA Does Not Preempt Criminal Statutes of General Applicability

ERISA's preemption provision also supersedes a state's generally applicable criminal laws (ERISA § 514(b)(4) (29 U.S.C. § 1144(b)(4))). For example, a state that has enacted a theft statute applicable to the entire state population:

May use that statute to prosecute an employer that steals from an ERISA plan.
Is not barred from prosecuting the employer under its theft statute merely because the theft involves an ERISA plan.

(Sforza v. Kenko Constr. Contracting, Inc., 674 F. Supp. 1493, 1495 (D. Conn. 1986).)

The courts that have addressed this provision have concluded that Congress intended for ERISA to preempt criminal laws that are directed specifically at employee benefit plans (Sforza, 674 F. Supp. at 1494-95 (collecting cases)). In Sforza, a district court, agreeing with the majority view on this question, ruled that a Connecticut law imposing civil and criminal liability for individuals (including corporate officers) who failed to make contributions to an employee benefit plan was not a state criminal law of general applicability. In reasoning that may have relevance in post-Dobbs abortion-related preemption challenges, the court noted that:

Congress intended the words "generally applicable" in ERISA's preemption provision to refer to criminal laws that apply to general conduct, such as larceny and embezzlement.
There is no indication in ERISA or its legislative history to suggest that Congress intended to impose personal liability on a corporate officer or shareholder for benefit plan contributions owed by the corporation.

As a result, if a state's post-Dobbs criminal law imposes liability specifically on benefit plan administrators for reimbursing travel and lodging costs for individuals who obtain an abortion, the plan administrator could likely argue that the law:

Is not a criminal law of general applicability.
Should therefore be preempted by ERISA.

Medication Abortion

In a statement issued post-Dobbs, the US Department of Justice (DOJ) took the view that states may not ban mifepristone, a medication abortion drug that has been approved by the Food and Drug Administration (FDA), based on disagreement "with the FDA's judgment about [the drug's] safety and efficacy" (DOJ statement (June 24, 2022)).

State Laws Regulating Abortion Vary Greatly

In overturning Roe and Casey, the Dobbs Court returned the regulation of abortion to the individual states. There is great variation among state laws that regulate (or protect) abortion, and the states will likely differ in how aggressively they enforce their abortion requirements.

Several states have enacted laws that support abortion rights, in some cases until viability. Roughly half of the states, on the other hand, have banned all abortion or are likely to ban most abortions. Many states had in place trigger laws under which prohibitions on abortion became effective shortly after the Dobbs ruling (see State Trigger Laws). This section addresses the range of abortion-related laws and requirements with which employer-sponsored health plans (particularly those with insured arrangements) must comply, post-Dobbs, using the current abortion laws of several states as examples of this range. However, the coverage of state abortion laws in this section is not comprehensive. In response to the Dobbs ruling, state law governing abortion will remain a very dynamic area and subject to change in the coming months and years.

California

California law prohibits the state from denying or interfering with a woman's right to choose or obtain an abortion either:

Before the fetus is viable.
In situations where abortion is necessary to protect the mother's life or health.

(Cal. Health & Safety Code § 123466.)

Viability for this purpose means the point in a pregnancy when, in a physician's good faith medical judgment and based on the particular facts of the case before that physician, there is a reasonable likelihood of the fetus's sustained survival outside the uterus without applying extraordinary medical measures (Cal. Health & Safety Code § 123464).

The laws of other states are also contrary to public policy in California if those laws permit individuals to bring a civil action against a person or entity for:

Receiving or seeking an abortion.
Performing or inducing an abortion.
Knowingly engaging in conduct that aids or abets the performance or inducement of abortion.
Attempting or intending to engage in any of the actions described above.

(Cal. Health & Safety Code § 123467.5.)

DMHC Litigation Involving Abortion

A Ninth Circuit ruling from 2020 illustrated the relatively expansive approach to permitting abortions taken by state insurance regulators in California (Skyline Wesleyan Church v. Cal. Dep't of Managed Health Care, 968 F.3d 738 (9th Cir. 2020)). The Ninth Circuit litigation involved a religious employer and California's Department of Managed Health Care (DMHC), which regulates the state's insurance market (including the scope of health coverage that insurers must provide) under California's Knox-Keene Health Care Service Plan Act of 1975.

The case arose after reports in 2013 that the DMHC had approved insurance plans in the state that limited or restricted abortion. Following the report, the DMHC:

Conducted an internal review of whether the abortion restrictions were consistent with California constitutional and statutory law (including the Knox-Keene Act).
Determined that legal abortion is a basic health care service that must be offered under insured coverage in the state.

As a result, the DMHC concluded that it had incorrectly allowed a handful of insurers to offer coverage containing abortion-related restrictions. The regulator issued directives to these plans that, effective immediately, required them to:

Provide abortion coverage.
Submit updated plan documents to the insurer reflecting removal of coverage restrictions for legal abortions.

The DMHC's directives did not state that an employer could request an exemption from the coverage mandate based on an employer's objection to abortion.

The plaintiff in the case was a religious employer that had offered coverage with abortion restrictions but was unable to do so following the DMHC's directives. Specifically, the employer had removed abortion-related restrictions in its plan documents. The employer sued the DMHC, asserting that the agency violated the employer's free exercise of religion by preventing it from offering coverage with abortion restrictions.

A district court dismissed the action, concluding that any injury the employer sustained could not be remedied by a court order directed at the DMHC. Rather, the court reasoned that the employer's injury could only be remedied if a health insurer (not a party to the litigation) provided the employer coverage that contained abortion restrictions consistent with the employer's religious beliefs. The employer appealed to the Ninth Circuit.

In ruling on the employer's claims, the Ninth Circuit observed that the Knox-Keene Act authorized the DMHC to establish standards for what are basic health care services that must be covered in the state. The Ninth Circuit reasoned that the employer chose to provide coverage governed by the DMHC because (among other reasons) it believed that offering self-funded coverage would be prohibitively expensive (see Self-Funded Health Plans).

The Ninth Circuit concluded that the employer had standing to bring its free exercise claim. The court reasoned that after the DMHC issued its directives, the employer was unable to offer coverage consistent with its religious beliefs. The court reasoned that:

The employer's loss of coverage was a direct result of the regulator's action.
A decision in the employer's favor could lead an insurer to provide coverage consistent with the employer's religious beliefs.

The Ninth Circuit therefore remanded the case to the district court for further proceedings.

Mississippi and Florida

The Mississippi law that was upheld in Dobbs generally bars abortions after the fifteenth week of pregnancy (Miss. Code Ann. § 41-41-191). At this point in a pregnancy, a fetus is still several weeks from being viable outside the womb.

Effective July 1, 2022, Florida prohibits doctors from terminating a pregnancy if the doctor determines that the fetus's gestational age is more than 15 weeks (Fla. Stat. § 390.0111). The law includes limited exceptions (for example, if termination is necessary to save the pregnant woman's life). An additional exception permits terminations if:

A fetus has not reached viability (under Florida Stat. § 390.01112).
Two doctors certify in writing that, in reasonable medical judgment, the fetus has a fatal fetal abnormality.

Texas Heartbeat Act (Texas S.B. 8)

Effective in September 2021, Texas S.B. 8 prohibits a doctor from knowingly performing or inducing an abortion if the doctor detects a fetal heartbeat for the unborn child (which generally occurs at around six weeks of pregnancy) (Tex. Health & Safety §§ 171.203, 171.204, 171.205). This prohibition is subject to limited exceptions in medical emergency situations.

The Texas law does not permit enforcement by state government officials in criminal prosecutions or civil actions. However, the law does allow most individuals to bring a private civil action against any person who:

Performs or induces an abortion in violation of Texas S.B. 8.
Knowingly engages in conduct that aids or abets performing or inducing an abortion, including paying for or reimbursing the costs of an abortion through insurance or otherwise, if the abortion is performed or induced in violation of Texas S.B. 8, regardless of whether the person knew or should have known that the abortion would be performed or induced in violation of the law.
Intends to engage in the conduct described in the above bulleted items.

(Tex. Health & Safety § 171.208.)

For individuals who are successful in bringing a civil action, a court must award:

Injunctive relief sufficient to prevent the defendant from violating Texas S.B. 8 or engaging in acts that aid or abet violations of the law.
Statutory damages of at least $10,000 for each abortion:
- that the defendant performed or induced in violation of Texas S.B. 8; and
- performed or induced in violation of the law that the defendant aided or abetted.
Costs and attorney's fees.

S.B. 8 includes a defense that allows an abortion provider to defeat a lawsuit against the provider by showing, among other things, that holding the provider liable would place an undue burden on women seeking abortions (Tex. Health & Safety § 171.209).

In December 2021, the Supreme Court generally rejected an injunction request by abortion providers to block enforcement of Texas S.B. 8 (Whole Women's Health v. Jackson, 142 S. Ct. 522 (2021)).

Additional Legislation Proposed By Some Texas Lawmakers

In addition, in a July 2022 letter to a major Texas law firm, several conservative Texas state legislators indicated that they intended to introduce legislation to prohibit Texas employers from paying for elective abortions or reimbursing abortion-related expenses, regardless of:

Where the abortion occurs.
The law in the state or other jurisdiction where the abortion occurs.

According to the legislators, the planned legislation would impose felony criminal sanctions on anyone who pays for these abortions. Doing so, according to the legislators, would make the law enforceable against self-funded health plans as a generally applicable criminal law (see ERISA Does Not Preempt Criminal Statutes of General Applicability).

The planned legislation, if enacted, also would permit private citizens to sue anyone who either:

Pays for an elective abortion performed on a Texas resident.
Pays for or reimburses the costs associated with these abortions, regardless of:
- where the abortion occurs; and
- the law in the jurisdiction where the abortion occurs.

The proposed legislation is modeled after Texas S.B. 8 and its private civil-enforcement mechanism.

The letter also suggests that the law firm to which it was sent may have aided or abetted abortions in violation of Texas S.B.8 by paying for abortions or abortion-related travel.

State Trigger Laws

As noted, some states (before Dobbs) had enacted trigger laws under which abortion would become illegal in the state a specified number of days after the Supreme Court issued the Dobbs ruling. Tennessee's criminal abortion statute, for example, became effective 30 days after a Supreme Court decision overruling (in whole or in part) Roe, as modified by Casey (Tenn. Code Ann. § 39-15-213). Under the Tennessee law, a person who performs or attempts to perform an abortion commits the offense of criminal abortion, which is a Class C felony. However, the Tennessee law does not subject the pregnant woman on whom an abortion is performed or attempted to criminal conviction or penalty.

Idaho's criminal abortion law also became effective 30 days after a Supreme Court ruling that "restores to the states their authority to prohibit abortion" (Idaho Code Ann. § 18-622). Under the Idaho law, all individuals who perform (or attempt to perform) an abortion commit the crime of criminal abortion. Criminal abortion in Idaho is a felony punishable by a prison sentence of at least two years and no more than five years.

In addition, the professional license of any health care professional who performs or attempts to perform an abortion (or who assists in performing or attempting to perform an abortion) in violation of Idaho's criminal abortion law must be:

Suspended by the appropriate licensing board for at least six months after a first offense.
Permanently revoked following a later offense.

Additional ERISA Preemption Resources

For additional ERISA preemption resources, see Practice Notes:

ERISA Preemption and Post-Dobbs Abortion Coverage for Employer-Sponsored Health Plans | Practical Law