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Supreme Court overturning constitutional right to abortion will impact employee benefit plans

Written by
FordHarrison LLP, nationwide U.S. law firm with a singular focus on HR law.
The US Supreme Court decision overturning Roe v Wade will have a significant impact on abortion procedures offered under employee benefits plans.


On Friday 24 June 2022, in Dobbs v. Jackson Women’s Health Organization, the US Supreme Court reversed its holding in Roe v. Wade, which found a constitutional right to obtain an abortion. In Dobbs the Court held the US Constitution does not confer a right to abortion, leaving the issue of the right to an abortion for states to decide.

This decision arose from a challenge by Jackson Women’s Health Organization and one of its doctors to Mississippi’s Gestational Age Act, which in essence prohibited any individual from performing or inducing an abortion at any point after the 15th week of pregnancy, except in the case of a medical emergency or severe foetal abnormalities.

The Mississippi law, as written, directly contradicted the Court’s prior precedents in Roe v. Wade, establishing the constitutional right to an abortion, and Planned Parenthood of Southeastern Pa. v. Casey, that reaffirmed the right to abortion. In both cases, the Court prohibited the states from restricting a woman’s access to abortion during the first trimester.

At the outset, Justice Samuel Alito, writing for the Court, stated:

‘The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision.’

In making this determination, the Court recognised the right to abortion is not expressly stated in the constitution, nor any of its amendments; notably this is consistent with its decision in Roe. The Court also considered and rejected the argument that the right to abortion is derived from the Fourteenth Amendment’s due process clause, which prohibits the states from depriving ‘any person of life, liberty, or property, without due process of law.’

In its evaluation, the Court noted the lack of recognition of a right to an abortion in any state constitution, law, or court decision prior to the latter part of the 20th century and found ‘that the right to abortion is not deeply rooted in the Nation’s history and tradition.’

The Court also rejected the argument in Roe that the right to abortion could not be nestled within the previously recognised right to privacy and stated that Roe’s holding lacks ‘a sound basis in precedent’ and ‘any claim to being deeply rooted in history.’

Lastly, the Court rejected the novel argument that the right to abortion could be derived from the Fourteenth Amendment’s Equal Protection Clause and stated:

‘State’s regulation of abortion is not a sex-based classification and is thus not subject to the ‘heightened scrutiny’ that applies to such classifications.’

Justice Alito authored the 6-3 majority decision, with Justices Clarence Thomas, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett joining Alito’s opinion. Chief Justice John Roberts filed a separate opinion, in which he agreed with the Court’s decision to uphold the Mississippi law, but argued the Court should have refrained from addressing the question of whether the Constitution protects abortion. Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan filed a joint dissent.

This is undoubtedly a landmark decision that overturns over 50 years of precedent. Within the 213-page opinion, the majority and dissent judges criticise the weight each place on the legal principle that courts should strongly adhere to precedent when making future decisions. Given the dissent’s adamant disagreement, the door may not be closed on this issue.

Impact on employers

While all of the ramifications of the Dobbs decision are still being considered and some will not be immediate, the first items to address are as follows:

  • Plan sponsors of health care plans that provide for abortions should review the laws of the states in which they offer benefits to determine if modification or limitations need to be added to the plan.
  • Employers should consider whether to pay for abortion expenses and provide for travel expenses to obtain an abortion.

For more information about Compensation and Benefits

Tiffany Downs
FordHarrison LLP
Evan R. Dancy
FordHarrison LLP