It’s about to be a lot harder to get an abortion in the United States. For many, it’s already hard. The result is that employers, including large companies, are being called upon to fill the abortion care gap. The likelihood of a Roe v. Wade reversal was the push some needed to extend benefits, with Microsoft and Tesla announcing abortion-related travel reimbursements in recent weeks. But the privacy and legal risks facing people in need of abortions loom large. If people have reason to fear texting friends for abortion resources, will they really want to confide in their company?
An employee doesn’t have “much to worry about” when it comes to health privacy, said employee benefits consultant Jessica Du Bois. “The HR director or whoever's in charge of the benefits program is not going to be sharing that information.” Employers have a duty to protect employee health data under HIPAA and a variety of state laws. Companies with self-funded health plans — in other words, most large companies — can see every prescription and service an employee receives. But the data is deidentified.
On the other hand, we’re in uncharted territory. Texas’ “aiding and abetting” clause hints at the sprawling legal impact to come if Roe is overturned. Bad actors might be inspired to hack databases to reap rewards for enforcing abortion restrictions. Uber or Lyft drivers could be implicated for unintentionally driving someone to an abortion appointment. Facebook or Google might be pressured to hand over user data. Could a prosecutor subpoena companies for abortion-related medical records to support an “aiding and abetting” case?
“Once you criminalize the activity, it opens up so much more leeway for law enforcement and prosecutors to launch investigations,” said Alejandra Caraballo, clinical instructor at Harvard Law School’s Cyberlaw Clinic. “Especially in states like Louisiana and others where they classify abortion as homicide.”
Catherine Fisk, a professor at Berkeley Law, said it’s unclear if employee health data would be subpoena-able in this instance. She thinks it would be hard for a prosecutor to argue.
“I suspect there will be real challenges in enforcing a subpoena over the objection of a company (or an employee) who maintains that the information as to an employee’s medical condition and treatment is protected from subpoena by both federal law and the law of the state where the treatment was provided, and concerned a medical procedure that was legal in the state where the procedure was performed,” Fisk told Protocol.
Regardless of the legal risk, workers might feel nervous about disclosing abortion needs due to company culture. They might face backlash from co-workers and supervisors who find out. Caraballo drew a link to gender affirming care, another form of health care that’s stigmatized. If an employee’s abortion-related medical claims are denied or inhibited in some way, they might hesitate to speak up. Caraballo said she’s seen this happen with trans employees.
“They don't want to bring it up with their employers because they're concerned it would either out them or would make them seem problematic and then therefore put a target on them by management,” Caraballo said.
Employees might also balk at the subtle ways their abortion care comes out in the workplace. A supervisor might ask to know why they need time off, or where they’re going. If abortion becomes limited to just a few states, quick trips might be viewed with suspicion. “There may be all kinds of issues within workplace culture,” Caraballo said.
While employers have little control over the legal risks, they can implement and discuss benefits in a way that puts employees at ease. Alina Vandenberghe, CEO of scheduling app Chili Piper, said trust isn’t built by just one policy. It’s built by consistently speaking up or taking action when employees are marginalized by laws or other social forces.
“It has to be a strategy in which employees feel they’re being taken care of in many ways and similar situations,” Vandenberghe said.
Chili Piper is reimbursing employees’ temporary relocation or travel costs for reproductive and gender-affirming health care, and offering four weeks of paid personal leave to anyone who needs to travel out of state for this care. Employees go directly to Chili Piper for reimbursement, not through their insurance provider. Vandenberghe said employees don’t have to disclose the exact service when requesting reimbursement. But she acknowledged that Chili Piper is still working out the privacy logistics, as it is a “deeply personal matter.”
Match Group has gone a different route, with CEO Shar Dubey setting up an outside fund for employees. The fund has partnered with Planned Parenthood Los Angeles, which will handle requests and travel arrangements from Match Group employees based in Texas. No one in Match Group will see this data, according to spokesperson Maggie Gillespie. Lyft and Yelp clarified to Protocol that they won’t see medical travel claims as the benefit is through their insurance.
Other companies — including Amazon, Apple and Tesla — Protocol reached out to didn’t detail exactly how they’re handling conversations around and implementation of their abortion travel benefits. Many, like DoorDash, are likely still working out the details. To ensure employees actually feel comfortable taking advantage of the benefit, Du Bois recommends eliminating barriers like prior authorizations. And keeping an eye on legislation. She doesn’t want employees to worry about accessing offered health benefits. For many people, accessing abortions via employer benefits will likely be the only safe option.
“We get scared of people having data, especially our employers,” Du Bois said. “Sometimes we have to see it as a positive thing, because them understanding that information allows them to make policy changes and implement benefits that help their workforce.”
