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  • Writer's pictureKatelyn Oldham

Reproductive health care bargaining and legislation post-Dobbs.

Updated: Jul 12, 2023

On June 24, 2022, the U.S. Supreme Court overruled Roe v. Wade and Casey, determining that there is no constitutional right to reproductive health care (including abortion). The Dobbs decision will have extremely broad-ranging effects, including increasing the maternal mortality rate and jeopardizing the ability of families to use reproductive health care when they are unable to have children without medical intervention. The decision severely limits the right of bodily autonomy, dignity and lifesaving medical care for half of all people living in states where reproductive health care is banned. Currently, many states with so-called "trigger laws" now have bans in effect. Other states, including Alabama, Mississippi and Texas, have recently passed extreme laws to criminalize reproductive health care, in addition to banning such care.

In response, some labor unions have begun calling for bargaining for reproductive health care benefits in response to Dobbs. At the same time, several large employers have stated that they will provide paid leave and economic assistance to their employees in states that have banned reproductive health care in order for those employees to travel to and receive such care in another state where it is not banned.

This raises a number of complex questions with legal and labor implications. Should employees share this kind of sensitive information with their employers? Should labor unions bargain for reproductive health care rights for their members? What are the risks?

Several states have made it a felony for any person to assist another in obtaining reproductive health care. These prohibitions include criminalizing assistance to leave the state for such care. Such laws should not be enforceable under the Commerce Clause, Equal Protection Clause and other constitutional provisions, however the current rightward trajectory of the federal courts and U.S. Supreme Court indicate that unfounded decisions should be anticipated. In Oklahoma v. Castro-Huerta (2022), for example, the court overruled hundreds of years of precedent relating to criminal jurisdiction when a crime is committed on tribal land. There was no foundation to do so, as illustrated by the robust dissent.

In light of the current criminalization of reproductive health care, employees and union members should be extremely cautious in sharing private and sensitive information with their employers about seeking such care. Law enforcement, government agencies or third parties could seek to subpoena records from employers relating to such care and prosecute individuals seeking such care, obtaining such care, or providing assistance to attain such care. Employers may also be subject to criminal penalty or civil liability.

Can and should employees trust that their employers will resist turning over private, confidential information about their leave requests for reproductive care? "No." If an employer does not voluntarily turn over such information, there is no reason to believe that a court will not compel it, particularly in states where "private" actions can be prosecuted due to new laws and legal authority or where the state's law enforcement apparatus is empowered to do so. It is unlikely that current laws, including HIPAA (which only applies to health care providers) and privacy laws will allow an employer to shield the production of such information if requested or subpoenaed. The information may also be subpoenaed by an attorney general or district attorney and there are likely to be financial and legal penalties associated with refusing to cooperate. How many employers will refuse to cooperate if such penalties could be triggered?

Can and should labor unions bargain for reproductive health care on behalf of their members and, if so, how can the legal risks to members seeking such care be mitigated? As discussed immediately above, HIPAA would not prevent an employer from turning over private confidential health information to a government agency, prosecutor, law enforcement agent or authorized third party with subpoena power. Labor unions may elect to bargain for enhanced or paid sick leave and related contractual rights that are not specific to reproductive health care, but that do not exclude such care. Any such bargaining should focus on general goals and benefits (adding paid sick days; increasing the reproductive care benefits insurers are still legally permitted to provide; increasing privacy rights of employees who are sick or seeking to access sick leave). Impact bargaining may also need to occur if employers or their insurance carriers limit or eliminate coverage for some types of reproductive health care including abortions and certain medications.

Can and should labor unions and employers partner to push for state and federal legislation to protect the disclosure of information relating to employees who seek access to reproductive health care? Yes. Pushing for enhanced protection of private health and leave information maintained by employers would benefit both employees and employers. Currently, the only real protection against disclosure is for the employee not to share sensitive information with their employer. If privacy laws are enhanced legislatively, it may help to protect against the compelled disclosure of such information.

Labor unions and employers can also partner to pressure states where reproductive health care is still fully legal not to cooperate in the extradition of individuals alleged to have violated criminalization schemes of another state. Several states have already announced such policy decisions, including Oregon, Washington and California. Employers and unions have a role to play in lobbying their respective state legislatures and governors in states that continue to offer full reproductive health care.

The post-Dobbs landscape looks like only the beginning of significant restriction and criminalization of reproductive health care. Unlike pre-Roe, legislation at the state level has included prohibitions on medications that many people need to take but that may effect a pregnancy, prohibitions even if the pregnant person will die as a result of the pregnancy (for example, no exception for ectopic pregnancy treatment in several states), and bounties and new civil liabilities that can be used by third parties to threaten and harass people. Many legal advocates are concerned that the current "bounty" scheme in some states, including Texas, will encourage perpetrators of domestic violence to exercise new means of control over their victims. For example, by threatening to report, or actually reporting the victim - whether the victim has actually sought reproductive health care or not.

(pub. 6-29-22)

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