Pro-Choice Plans

Authors

Brendan S. Maher, Texas A&M University School of LawFollow

Document Type

Article

Publication Date

5-2023

Journal Title

George Washington Law Review

ISSN

0016-8076

Abstract

After Dobbs v. Jackson Women’s Health Organization, the United States Constitution may no longer protect abortion, but a surprising federal statute does. That statute is called the Employee Retirement Income Security Act of 1974 (“ERISA”), and it has long been one of the most powerful preemptive statutes in the entire United States Code. ERISA regulates “employee benefit plans,” which are the vehicle by which approximately 155 million people receive their health insurance. Plans are thus a major private payer for health benefits—and therefore abortions. While many post-Dobbs anti-abortion laws directly bar abortion by making either the receipt or provision of abortion illegal, other anti-abortion laws target activities thought to facilitate abortion, most notably paying for abortions. Some of these laws, or proposed laws, attempt to punish paying for out-ofstate abortions, i.e., paying for abortions in a state where abortions are legal. ERISA says otherwise. If the plan covers abortion as a benefit, ERISA preempts laws purporting to bar plans in states where abortion is banned from paying for out-of-state abortions. It likewise preempts laws attempting to obligate plans to “report” on pending or completed abortions obtained by plan members. For the first time in the scholarly literature, this Article explains how and why that is the case—and thus the underappreciated importance of ERISA in the post-Dobbs world.

First Page

446

Last Page

498

Num Pages

53

Volume Number

91

Issue Number

2

Publisher

George Washington University

Recommended Citation

Brendan S. Maher, Pro-Choice Plans, 91 Geo. Wash. L. Rev. 446 (2023).
Available at: https://scholarship.law.tamu.edu/facscholar/1789

File Type

PDF