There is much uncertainty in the wake of the U.S. Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization that overturned Roe v. Wade. Many states either have trigger laws or have passed new statutes to restrict abortion, as the Court has now left the matter up to states to decide. Some companies are trying to step into the breach and make it easier for their employees to travel across state lines to get an abortion where it is still legal. Some Texas companies may face legal repercussions in the state if they fund employee travel for this purpose.
Companies Doing Business in Texas Have Announced Plans to Fund Travel for Reproductive Health, including Abortions
One major international law firm with offices in Dallas – Sidley Austin – has already announced that it will provide funding for Texas employees to travel out of state for reproductive health issues which would include abortion. Rideshare companies Uber and Lyft have also pledged to make similar payments. Other well-known companies that have promised to pay for abortion-related services include Bumble, Citibank, and Tesla. Numerous other employers in the state have pledged to follow suit, setting up a potential showdown with the Texas Legislature and law enforcement.
A 1925 Law May Have Taken Effect with Roe’s Repeal
Texas already has an existing abortion ban that has been on the books since 1925 and became dormant when the Supreme Court recognized a constitutional right to an abortion in Roe v. Wade. This law criminalizes abortion and prohibits providers from performing the procedure. Violating the law could lead to two to 10 years in prison. Now that Roe has been overturned, the Texas Supreme Court has ruled that the 1925 law can be enforced. Additionally, Texas was one of the states that passed a trigger law that criminalized abortion and related activities if Roe were ever overruled. The triggering event occurred and so House Bill 1280 along with the Heartbeat Bill, SB 8, are items employers must consider in making decisions related to facilitating employee reproductive healthcare.
Some Texas legislators are warning companies that if they reimburse employees for abortion travel and related expenses that they could face consequences under these state laws. Specifically, the pre-Roe law criminalizes providing “the means for procuring an abortion knowing the purpose intended.” The law makes this conduct a felony. Texas Attorney General Ken Paxton supports enforcement of this law and there already have been threats to jail partners in the law firms that have promised to fund abortion travel.
There Are Claims That a Law Firm Violated Texas Law
The Texas Freedom Caucus, a legislative caucus in the Texas House of Representatives, sent a letter to Sidley Austin, informing the firm that it may have violated state laws and should preserve documents in anticipation of litigation, which may already be underway. Sidley’s partners were threatened with jail time, civil penalties, and disbarment. In addition, the Texas Freedom Caucus claims that Sidley may have provided employees with abortion pills in violation of other state laws. The letter was supported by the 11 conservative Texas lawmakers and concluded: “Conduct yourselves accordingly.” The letter also stated “It also appears that Sidley has been complicit in illegal abortions that were performed in Texas before and after the Supreme Court’s ruling.” As an aside, other firms in Texas, such as Vinson & Elkins and Kirkland & Ellis have pledged to pay for employees’ travel expenses, but have not been threatened. Some commenters believe that it is because Sidley Austin’s chair of the management committee, the governing body of the firm, is a female. The Texas Freedom Caucus letter was addressed to her.
The law firm is not backing down, raising the prospect of a standoff. As many as 30 large law firms and numerous companies have not changed their plans. It is not at all clear how this standoff will end.
In the letter to Sidley, the Texas Freedom Caucus threatened to pass new legislation that would disbar any lawyer who pays for another to have an abortion. The Texas Legislature is considering numerous other laws that would punish companies that assist employees in obtaining abortions.
The Texas Legislature Promises Numerous New Laws in 2023
It remains to be seen how the Texas Legislature will move forward. It does not meet for the rest of 2022, as it only convenes in odd-numbered years. Some district attorneys in large Texas cities have promised not to proceed with criminal prosecutions for violations of the state’s abortion laws, while Attorney General Paxton is promising widespread enforcement efforts. The Travis County District Attorney told the Texas Tribune “All I can say is that the courts and the state constitution have been very clear that elected district attorneys have sole criminal jurisdictions in their community.” In the meantime, the Texas Legislature may continue to shape its own strategy with so much time to prepare for the coming legislative session.
One of the main enforcement priorities for the Texas Legislature will be banning women from traveling out of state to obtain an abortion. However, these laws would venture into a legal gray area, as there is little precedent for a state forbidding travel out of state for a particular purpose. In his concurring opinion to Dobbs, Justice Kavanaugh opined that the freedom to travel would keep a state from barring residents from traveling out of state to obtain an abortion.
In the case of companies funding abortions, the legal issue is not whether the employees can travel. The claimed violation of Texas law is providing assistance to someone else in procuring an abortion.
Meanwhile, the U.S. House of Representatives has passed a bill sponsored by Houston Democrat Lizzie Fletcher that would allow people to travel out of state to get an abortion. The bill faces an uncertain future in the Senate, where it would need to clear the 60-vote threshold.
The Certain Thing in the Future Is Uncertainty
The standoff in Texas is just a hint of the uncertain future for both companies and employees as they seek to navigate a new reality after a five-decade-old precedent was taken off the books by one Supreme Court decision. The Texas Legislature has indicated it will attempt to make companies pay a price for acting on principle. Travel out of state for abortion appears to be one of the early battles in the post-Roe landscape in Texas. Companies seeking counsel on labor and employment related issues including the implications surrounding reproductive healthcare assistance to employees should consult an experienced lawyer.