Employee Retirement Income Security Act (ERISA) attorneys and scholars are an enthusiastic bunch. They love (love) talking all things benefits, whether this means arcane legislative history or the minutiae of healthcare plans. ERISA folk especially love their statute, even though almost everyone else considers it too dry and far too complex—and even though they themselves often affectionately poke at it with names like the Every Ridiculous Idea Since Adam law. (This was my own ERISA professor’s personal favorite.)
Occasionally, as with Brendan Maher’s recent article, Pro-Choice Plans, the reason for all this enthusiasm becomes eye-wateringly obvious. ERISA affects aspects of life that everyone cares about deeply: what happens when we get sick, and what happens when we get old. As Maher points out, this means it also—if indirectly—affects abortion access.
The first great virtue of Maher’s article is its mercifully clear and minutiae-free explanation of core ERISA concepts and elements. Walking non-ERISA folk through the workings of a statute that generates instant eye-glaze is, as I know all too well, no easy task. Maher accomplishes it with both brevity and nuance. You might even read the article as a primer on the statute itself, regardless of your interest in ERISA’s impact on abortion rights. It’s that accessible. You could certainly assign it to a classroom of exhausted and preoccupied law students. I plan to do so.
Of course, if you’re at all interested in reproductive rights, American politics, or law, you’re probably reading Pro-Choice Plans for what it has to say about abortion. That would also be an excellent choice, no pun intended, because what Maher says is both insightful and exciting without getting carried away by its own creativity. If you’re pro-choice and still weighed down by the long shadow of Dobbs, as I am, it offers a much-needed glimmer of possibility.
Maher’s argument is simple. Many people who seek abortions will do so via their healthcare plans, and most healthcare plans are subject to ERISA. How ERISA intersects with the myriad state laws limiting abortion access is thus self-evidently important. I should note here that, in the course of laying out his normative argument, Maher constructs a nice, four-fold categorization of state abortion laws that is keyed to ERISA but is also more broadly useful.
Two types of state laws, he writes, are unlikely to survive ERISA’s well-established preemption powers: “reporting” laws that force individuals to report pending or completed abortions, and “aiding and abetting” laws that prevent individuals or institutional actors from facilitating abortions. But, of course, there are four benefits-relevant types of state laws in his taxonomy. Maher acknowledges that the remaining two categories—“direct” laws that prohibit getting or providing abortions within state boundaries, and “insurance” laws that prohibit in-state insurers from covering abortion expenses within state boundaries—are trickier. In states that enact these latter two kinds of laws, ERISA doesn’t offer an easy path to continued access.
Even so, there may be options for employers who want to provide abortion coverage to their employees. Self-insured plans are quite likely to survive state prohibitions, assuming that the Supreme Court does not decide to upend decades of ERISA precedent. (Maher, to his credit, is appropriately cautious on this point.) But that only takes care of wealthy employers whose bank balances can support their ideological preferences. What about small employers who share an interest in providing abortion coverage but not at the expense of their own survival? Maher makes a few tantalizing observations about the use of stop-loss insurance coverage—and, yes, observations about insurance can be “tantalizing.” I would have loved to hear more of his thoughts on this front. Nevertheless, since we don’t have much precedent to go on, Maher’s circumspection is once again entirely warranted.
Read Pro-Choice Plans for its humane explanation of a complicated statute. Read it for a rare spot of hope in an otherwise disheartening time. Read it for a renewed appreciation of the ways legal solutions may not always come from obvious legal sources. But do read it.
