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New Corporate Policies on Abortion Travel Spark Worries About Employees’ Privacy

8 minute read
Updated: | Originally published:

In the hours after the Supreme Court overturned Roe v. Wade on Friday, eliminating the constitutional right to an abortion, several major U.S. corporations announced they would cover travel expenses for employees who had to cross state lines to obtain an abortion.

Dick’s Sporting Goods announced it would provide up to $4,000 in travel expense reimbursement to employees who live in states with abortion restrictions, so they “can access the same health care options, regardless of where they live, and choose what is best for them,” CEO Lauren Hobart said in a LinkedIn post. Meta, Facebook’s parent company, said it would offer travel expense reimbursements “to the extent permitted by law” for employees who need to access reproductive care in another state. “We are in the process of assessing how best to do so given the legal complexities involved,” a Meta spokesperson said. Disney told employees that a benefit offering them access to care in other states extends to “family planning (including pregnancy termination),” according to a company spokesperson.

They’re among more than 25 companies—many of them household names—that announced such policies in the weeks leading up to the Supreme Court’s decision or after the official ruling on Friday.

But as the dust settles in a post-Roe America, companies’ involvement in their employees’ abortion care also raises a host of new legal and privacy issues. And abortion-rights advocates are frustrated that people who become pregnant in states where abortion is illegal or heavily restricted will have to depend on their employer as they navigate complex health decisions.

“Certainly women who have to access care are not overjoyed that this is where we find ourselves. This is a policy failure. This is a systemic failure,” says Erika Seth Davies, CEO of Rhia Ventures, a fund focused on reproductive health care that has encouraged companies to improve access to abortion. “And now we’re having to look to the private sector to just see to it that people can get what they need, and that’s a very precarious position.”

Kayte Spector-Bagdady, a lawyer and bioethicist at the University of Michigan who focuses on health data, says she appreciates companies that are making well-intentioned efforts to support employees’ access to abortion. But there’s still a lot of uncertainty regarding what these policies will actually mean for employees; whether the benefits will be managed by health insurance providers, supervisors, or a human resources department; whether employees can use their health savings accounts for abortion care; and how employees’ privacy will be protected.

Read More: What Abortion Providers in Anti-Abortion States Will Do Post-Roe

“People think of health information as being protected because it’s about your health, and that’s not accurate,” she says. “I have a lot of concerns regarding the legality of the way they arrange this funding for travel, as well as the kinds of privacy protections that are in existence to protect the kind of information being generated in these relationships.”

She acknowledges that company reimbursements are a valuable resource for people who could otherwise not afford to travel for abortion care, but sharing that kind of personal information with an employer poses additional challenges. “It’s a terrible position to put people into,” she says, referring to the Supreme Court’s ruling in Dobbs v. Jackson Women’s Health Organization.

The end of Roe v. Wade has given rise to new concerns about how sensitive abortion data—including period-tracking apps or internet searches for abortion-inducing medication—could be exploited amid efforts to criminalize abortion and potentially penalize people who have an abortion and those who help them.

Read More: Anti-Abortion Pregnancy Centers Are Collecting Troves of Data That Could Be Weaponized Against Women

So far, no states have criminal penalties for people who seek abortions—but there are signs that such laws may be coming. Texas and Oklahoma passed laws allowing private citizens to sue abortion providers and others who help someone get an abortion. It’s not yet clear if companies paying for employees’ abortion-related travel could also be liable, though a group of Republican lawmakers in Texas pledged to introduce legislation that would stop corporations from doing business in the state if they pay for abortions in other states, the Texas Tribune reported. And earlier this year, a Republican in Louisiana introduced a bill that would classify abortion as homicide and would allow prosecutors to criminally charge abortion patients. The bill was withdrawn after criticism, but it alarmed abortion-rights advocates.

Roughly half of Americans receive health insurance through an employer—and experts note that employers have previously had access to other sensitive health information for their employees, which is often protected by federal health data privacy laws. But it’s not yet clear how every company will handle their new abortion-access policies—especially if threatened with legal or financial penalties.

“When we’re talking about telling your employer that you’re going to get an abortion and the employer giving you cash to support that decision, that is far outside any scope of protected health data,” Spector-Bagdady says. “And also, I fear, opens women up to additional layers of potential discrimination.”

She says companies need to prioritize data privacy to protect employee information as much as possible, while they roll out new policies supporting abortion access, “both to protect the company itself, but also in some states, the woman from criminal liability.”

Read More: What to Know About Abortion Pills Post-Roe

So far, no states have passed laws restricting patients’ ability to travel out of state for an abortion. But reproductive rights advocates worry that anti-abortion lawmakers could also pursue that in the future. “Employers should make sure that in providing these payment systems, they are standing in the shoes of the employee for a moment and thinking, ‘You know, what protections are necessary to ensure that employees can be comfortable taking advantage of them?’” says Liz Brown, an associate professor of business law and ethics at Bentley University in Massachusetts.

One of the most important protections, she says, is confidentiality, “so that an employee doesn’t have to, for example, ask their boss or have their boss know.”

With Roe overturned, 26 states are likely to ban abortion, according to the Guttmacher Institute, a research organization that advocates for abortion rights. And low-income people and women of color are likely to be most heavily affected by lack of access to abortion, further exacerbating racial disparities in healthcare.

Brown says it’s important for companies to keep that in mind and extend abortion-access policies to all front-line retail or service workers, not just employees in corporate offices. “I would strongly encourage employers to broaden access to this particular benefit as much as possible, considering the racial imbalance in the population that’s going to be most affected by these restrictions,” Brown says.

So far, many large retailers have remained silent on this issue. That’s also why United for Respect, a nonprofit advocating for retail workers, has called on Walmart to follow other companies and enact a similar abortion-access policy for retail employees. (A spokesperson for Walmart did not immediately respond to a request for comment.)

“With a heavy concentration of retail locations in the south—where several states have abortion trigger laws in place—Walmart has an opportunity and a duty to step up and ensure its associates are supported in decisions they make about their own bodies,” Bianca Agustin, corporate accountability director at United for Respect, said in a statement.

“As the largest private employer in the nation, Walmart executives can set the standard for other companies by supporting their associates and providing adequate maternity leave, paid sick leave, and covering the cost of expenses for associates who need to travel across state lines to access abortion services.”

And many advocates for reproductive rights have called on companies to do more than offer health benefits, but to stop donating to legislators who have supported anti-abortion legislation.

“We should have never gotten here—to this point where corporations are reactively—and falsely —committing to fighting for abortion access,” UltraViolet, an organization that advocates for gender equality and reproductive health, said in a tweet. The group says that corporations have donated more than $195 million collectively to anti-abortion lawmakers since 2020.

Davies thinks that companies’ abortion-access policies represent a step in the right direction, but it’s only a start. She would like to see more companies lobby Congress for federal policies that support reproductive health care and protect abortion access.

“We don’t have to be in this position of having to, again, look to the private sector for this coverage and this access,” she says. “How are companies leveraging their political spending? Is it in alignment with the values that they espouse? And if it’s not, then it should be.”

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Write to Katie Reilly at Katie.Reilly@time.com