In previous posts (available here and here) we reported on some of the legal consequences from Dobbs v. Jackson Women’s Health Organization on employer-sponsored group health plan coverage of abortion-related travel benefits. This post addresses the larger concern related to the legality of these benefits in the face of a burgeoning number of states seeking to extend their extra-territorial reach to bar or even criminalize individuals who provide abortion-related travel.
At issue here is the question of the extra-territorial application of state law. Under what circumstances may a state that bans abortion apply its civil or criminal law to citizens procuring abortions in other states lacking such bans? And what exposure might an employer face for facilitating out-of-state abortions through travel reimbursement programs that run afoul of such bans?
At first blush, one might wonder what all the fuss is about. Don’t U.S. citizens have an unfettered right to travel? Citizens who live in states that ban gambling or marijuana routinely make their way to Nevada and Colorado, respectively without fear of legal liability. This somewhat obvious travel right might be exactly what Justice Kavanaugh was referring to in his concurring opinion in Dobbs when he asked whether a state could bar one of its residents from traveling to another state to obtain an abortion. In answering the question, he opined that the answer is no “based on the constitutional right to interstate travel.”
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