Employers and employees face legal risks amid abortion 'trafficking' laws

For anyone who can become pregnant in the U.S., their access to healthcare hinges on whether their state is one of the 18 that has banned or severely restricted abortion care. The one loophole Americans have — if they can afford it — is out-of-state care, but that option may soon be eliminated too.

Idaho has already passed an "abortion trafficking" law, which prevents minors from crossing state lines to access abortion care without their parents' permission. While a federal judge has temporarily blocked the law, calling it unconstitutional, that hasn't stopped states like Texas, Tennessee and Oklahoma from trying to get similar legislation approved. In fact, in January, Tennessee introduced a ban that would make minor out-of-state abortion care a Class C felony, meaning anyone from a friend to a grandmother could be sent to prison for 15 years after trying to help their loved one travel to another state for care. 

These laws target the influx of pregnant people who now must seek healthcare outside their home states. According to the Guttmacher Institute, the proportion of patients traveling for abortions has doubled.

Read more: The fight for abortion rights

"These laws are a continued attack on our reproductive health care and our bodily autonomy," says Monifa Bandele, chief strategy officer at MomsRising, a social welfare organization and advocacy group dedicated to families. "And these laws, in particular, really wade into some deep water. They criminalize any adult who helps a teenager get access or information about an abortion in another state."

Notably, these laws insinuate that by helping minors seek abortion care in another state, the accused adult in question is essentially taking part in human trafficking; they are trafficking the minor and fetus across state lines. These laws lean on the notion that fetuses or even embryos should be granted personhood, meaning they have the same rights as actual children. This is the same rhetoric that made it possible for the Alabama Supreme Court to pass a law ruling that embryos created through IVF should be considered children. 

Read more: What Alabama's IVF ruling will mean for employees seeking fertility care

For employers, these laws would likely put a freeze on their abortion travel benefits, which typically provide funds for employees who need to leave their state for care. 

"We know that people are risk averse, and they're going to overcorrect regardless of what the actual legalese spells out in the state bills," says Bandele. "This is going to have such a huge impact on healthcare providers as well as jobs and organizations."

The broad language of these travel bans also makes it easy to accuse someone of aiding a minor — lending a loved one gas money or just telling them the name of a clinic they could go to via phone call could be considered a crime.

"It's really about further controlling the person the embryo is in or would be in," says Bandele. "These laws say that a [collection] of cells supersedes your rights, physical health, and mental health as a person. Some people will be forced to go through pregnancies that are bad for their health and their families."

Employers have been forced to grapple with the assault on reproductive care, and have revisited their benefits to account for legal challenges. Thirty-two percent of employers with 200 or more employees currently offer healthcare coverage for abortion in most or all circumstances, according to KFF, while 35% of employers have abortion travel benefits, according to WTW. Employers have also added family-building benefits that help pregnant workers navigate their healthcare journey. 

Bandele emphasizes that six out of 10 women who get an abortion are already mothers, according to the CDC. By further grinding away access to reproductive care, families stand to lose their parents to an unsafe pregnancy or birthing experience, as well as their economic security. Women stand to lose opportunities for higher education and financial independence, whether they were forced to carry a pregnancy to term or they are daughters within a family who were forced to have another child they couldn't afford, notes Bandele.

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She urges employers to make the stances on abortion access clear and continue to work with their legal teams to build the best healthcare benefits they can under the circumstances. All Americans should continue to advocate for women's reproductive rights and vote accordingly on every level of government, from local to nationwide representatives and laws, she says.

"We have to fight like hell," says Bandele. "We can't let the next generation experience this dip in freedoms, this dip in bodily autonomy, that our grandmothers and our mothers fought so hard for."