Abstract
This Note analyzes the various types of state abortion bans, focusing on those with aiding and abetting clauses. These bans impose civil liability for anyone, including companies providing abortion access benefits, who help a pregnant person gain access to abortion. Additionally, this Note analyzes federal legislation to determine if any retaliatory actions taken against companies violate federal law. This legislation includes the Employee Retirement Income Security Act (“ERISA”) which creates uniformity in insurance and benefits coverage by superseding any state law that references or relates to an ERISA plan. Many advocates believe that ERISA is a company’s greatest defense to civil liability under state abortion laws.
This Note argues that the aiding and abetting clauses within the state laws are preempted by ERISA. This is due to the type of state law creating the liability and the methods companies can use to provide abortion care benefits. Finally, this Note concludes that ERISA protects from some liability but not all. Therefore, this Note recommends that Congress pass additional legislation to protect the right of companies to provide reproductive healthcare benefits to their employees without the risk of lawsuits being filed against them