August 26, 2022 - Following the Supreme Court's recent decision to overturn Roe v. Wade, state legislatures have begun passing new laws directed at those who obtain and provide abortion services, as well as at those who assist them. Some states' laws impose criminal liability, and more may soon follow. And, of course, all states have criminal laws prohibiting homicide that could be employed by zealous prosecutors where state law supports fetal personhood.
Employer benefit plans and their sponsors and administrators need to understand the risks of potential criminal liability for themselves and their employees if they offer benefits for abortion services and abortion-related travel. While the Employee Retirement Income Security Act of 1974 (ERISA) generally preempts state laws that would seek to prohibit self-funded benefit plans from offering abortion-related coverage, ERISA will not necessarily prevent states from prosecuting plans, sponsors, administrators and their employees in all instances.
A. ERISA preemption and its exception
ERISA broadly preempts "any and all State laws insofar as they may not or hereafter relate to any employee benefit plan." (29 U.S.C. § 1144(a)). However, section (b)(4) of ERISA's preemption provision says that subsection (a) "shall not apply to any generally applicable criminal law of a State." (29 U.S.C. § 1144(b)(4) (emphasis added)). ERISA does not define "generally applicable criminal law,' and there is almost no legislative history and...
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