In response to the Supreme Court’s overturning of America’s constitutional right to abortion, big employers thought they had found a way to help workers living in states where abortion would be banned: provide benefits to support travel to other states for services. But this solution only raises questions.
Experts warn that simply claiming the benefits can create a paper trail for law enforcement officials in states that criminalize abortion.
“How will law enforcement respond to health-related travel and how will employers respond? are just two of the questions lawyers are asking, said Lucia Savage, a former Obama administration official and current chief privacy officer at Omada Health, a California-based startup that helps people manage chronic diseases, such as hypertension and prediabetes.
Some regulations – like the Health Insurance Portability and Accountability Act, which governs health privacy; and other insurance laws — protect parts of a patient’s privacy. Human resources departments are required to keep certain medical data tightly confidential, but a determined law enforcement officer with a search warrant or subpoena could ultimately gain access to patient data.
This will make life more difficult for dozens of companies promising to protect, or even expand, abortion benefits for employees and their dependents.
A review by KHN of publicly available statements identified at least 114 companies that had pledged to maintain abortion benefits or expand benefits by offering paid time off or reimbursement for travel and accommodation costs. so that employees or dependents can obtain an abortion.
They include some of the largest and most important corporations in the United States. For example, 54 of the companies — including Starbucks, Bank of America, and California-based Disney and Apple — are in the Fortune 500.
But some companies have been reluctant to describe the steps they take to protect employee privacy. Only 28 companies responded to KHN’s inquiries about their privacy policies. Most declined to comment.
“We have nothing to share beyond our statement,” said Erin Rolfes, spokeswoman for Kroger, which has supermarkets in 35 states. Microsoft spokeswoman Amanda Devlin also declined to share information on how employees would claim refunds.
Others were a bit more specific about how their benefits would be administered. Ulta Beauty spokeswoman Eileen Ziesemer said the Illinois-based company’s abortion benefits would be managed through its “health care plan and internal systems.”
When asked if these internal systems would be vulnerable to a subpoena or search warrant, she said, “Given that each state will implement the Supreme Court’s decision to overturn Roe v. Wade and that state-by-state laws are rapidly changing, we are unable to comment on potential impacts at this time.
Observers agreed that how companies will deal with the privacy implications of extending abortion benefits is uncertain.
“They’re all trying to build this bike while they ride it,” said Shelley Alpern, director of corporate engagement at Rhia Ventures, a nonprofit investor in reproductive and maternal health companies.
Employers “are going to try to infringe on privacy,” predicted Owen Tripp, CEO of San Francisco-based Inclusive Health, a startup that offers browsing services and virtual care to employers. Many companies clearly intend to extend the benefits. “But how you do it is less clear,” he said. “More and more cloudy every minute.”
Some employers will likely hire companies like Tripp’s to manage benefits for them.
Match, the dating conglomerate, has partnered with Planned Parenthood Los Angeles, and all arrangements and information will be channeled through that group. In a statement, Match also pledged to take steps to protect employee privacy, saying it will “fight all legal demands or subpoenas regarding employee data or user data related to the abortion or LGBTQIA+ rights”.
Some startups are expanding their offerings: California-based Carrot Fertility, a company that offers fertility care services, will help its employer clients who want to expand access to abortion, CEO Tammy Sun wrote.
That should solve some privacy issues, Tripp said. His company handles travel and paid time off for a range of procedures such as bariatric surgery and cancer treatment. A patient can claim these benefits through Tripp’s company, so the employer only sees aggregate information about the amounts paid for patients seeking care. This helps protect co-workers’ information.
Still, there are several open questions, Savage said. Among them: How will an employee plan respond to requests from law enforcement? Will the US Department of Health and Human Services Office for Civil Rights, which administers health privacy regulations, limit the circumstances in which law enforcement can request data?
Currently, investigators can access it with a warrant or subpoena and in certain emergencies.
In practice, uncertainty can deter pregnant patients from claiming the benefit, said Larry Levitt, executive vice president for health policy at KFF. “There is no doubt that those concerned about disclosing an abortion to their employers will limit the frequency of use of this benefit, even when it is available,” he said.
This was the case even when Roe was the law of the land, when patients often chose to pay out of pocket, rather than relying on their insurance. “Employers who offer these abortion benefits are by definition supportive of reproductive rights, but that doesn’t mean that employees still wouldn’t want privacy when they or a family member are having an abortion,” he said. said Levitt.