{"id":33135,"date":"2022-06-25T02:23:00","date_gmt":"2022-06-25T02:23:00","guid":{"rendered":"https:\/\/cjstudents.com\/index.php\/2022\/06\/25\/can-companies-still-cover-abortion-travel-costs\/"},"modified":"2022-06-25T02:23:00","modified_gmt":"2022-06-25T02:23:00","slug":"can-companies-still-cover-abortion-travel-costs","status":"publish","type":"post","link":"https:\/\/cjstudents.com\/index.php\/2022\/06\/25\/can-companies-still-cover-abortion-travel-costs\/","title":{"rendered":"Can Companies Still Cover Abortion Travel Costs?"},"content":{"rendered":"

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With Roe v. Wade no longer the law of the land, women seeking abortions will soon start traveling. Could a state punish an employer for covering their costs? The issue is likely to arise: A number of major corporations have come forward with offers to pay the expenses of employees who leave the state to end their pregnancies, and some state legislators are threatening to punish them.<\/p>\n<\/div>\n<\/div>\n

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In a recent column, I explained why I\u2019m skeptical about both the wisdom and constitutionality of state laws that would criminalize obtaining an abortion outside the state. (Based on his separate concurrence, Justice Brett Kavanaugh agrees.) But if the travel is paid for by an in-state actor \u2014\u00a0such as an employer \u2014 the case might come out differently.<\/p>\n<\/div>\n

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States obviously have the authority to define and punish crimes that occur within their borders. Once upon a time, the state\u2019s territory largely marked the bounds of its criminal law. A state could often punish an act in another state that resulted in harm within its own borders, but the reverse wasn\u2019t always true. Consider, for example, an 1894 case involving a defendant who, while standing entirely within North Carolina, fired a shot that killed a man who was standing entirely in Tennessee. The court ruled that the defendant could be punished only in Tennessee, because the simple act of firing a gun was not illegal in North Carolina; only the result was, and the result took place on the other side of the border.<\/p>\n<\/div>\n

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Within a year, North Carolina revised its criminal law so that anyone else doing the same thing could be punished. Nowadays, states claim a broad jurisdiction to punish acts within their borders that facilitate crimes outside their borders. Consider a non-custodial parent who legally takes the children out of the state and then doesn\u2019t bring them back. Although the crime is being committed outside the borders, just about every court to consider the matter has agreed that the state where the children live can prosecute.<\/p>\n<\/div>\n

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The issue also arises in other situations where the defendant has crossed the border. Here\u2019s the California Supreme Court, writing in a sexual abuse case from 2005: \u201cCalifornia has territorial jurisdiction over an offense if the defendant, with the requisite intent, does a preparatory act in California that is more than a de minimis act toward the eventual completion of the offense.\u201d<\/p>\n<\/div>\n

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The law in most states is similar. Yet although it\u2019s hard to imagine that simply exiting the state could reasonably be deemed a \u201cmore than de minimis act,\u201d paying someone\u2019s expenses to cross the border might well be.<\/p>\n<\/div>\n

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If a state can forbid abortions, it can probably forbid significant acts facilitating abortions, just as it can with any other crime. True, as I noted in my previous column, the Supreme Court has been uneasy at the idea of allowing a state to punish a corporation for an act the corporation does elsewhere. Here, however, the act \u2014\u00a0paying the employee\u2019s expenses, thus facilitating the abortion \u2014\u00a0would be done, or at least arranged, within the state. Thus the state might well have jurisdiction.<\/p>\n<\/div>\n

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I\u2019m not predicting that the courts would necessarily uphold a law forbidding corporations doing business within its borders to reimburse travel expenses of employees who obtain abortions elsewhere. But one shouldn\u2019t regard the possibility as farfetched.<\/p>\n<\/div>\n

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That\u2019s not to suggest that such a law would be wise. Even the most ardently anti-abortion legislator might think twice about laws that could encourage employers to leave the state. Moreover, even if the legislature welcomes the chance to tangle with Starbucks or Amazon, practical problems of enforcement abound.<\/p>\n<\/div>\n

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Let\u2019s suppose that the state does indeed ban corporations from paying the expenses of employees who travel to end their pregnancies, and the ban is indeed upheld by the courts. How exactly would the state know whether the corporations were breaking the law? One can imagine regulatory agencies or legislative committees demanding financial records to show exactly which employees had left the state at the company\u2019s expense and why, or perhaps a certification of some sort (on pain of perjury) that no corporate funds had been expended for the forbidden purpose. We\u2019d likely see a bizarre tangling of ideological lines, as liberals lined up in defense of corporate autonomy from legal control.<\/p>\n<\/div>\n

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Still, in a post-Roe world, the state might prevail. So perhaps instead the company could find a clever workaround. Rather than pay for trips to secure abortions, the company might instead offer early pregnancy leave that happens to include paid travel. If that device seems too transparent, the company might instead adopt a policy of paying a couple of times a year for any employee to travel to any nearby state for up to, say, two weeks. In an era of remote work, this possibility might be less absurd than it sounds. And if the employee happens to obtain an abortion while traveling, nobody would need to know.<\/p>\n<\/div>\n

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Speaking of the right to privacy.<\/p>\n<\/div>\n

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More from Bloomberg Opinion:<\/p>\n<\/div>\n

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\u2022 Ending Roe Is Institutional Suicide for Supreme Court: Noah Feldman<\/p>\n<\/div>\n

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\u2022 With Roe Struck Down, What Now?: The Editors<\/p>\n<\/div>\n

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\u2022 Abortion Rights Falter as Democracy Slides: Clara Ferreira Marques<\/p>\n<\/div>\n

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This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.<\/p>\n<\/div>\n

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Stephen L. Carter is a Bloomberg Opinion columnist. A professor of law at Yale University, he is author, most recently, of \u201cInvisible: The Story of the Black Woman Lawyer Who Took Down America\u2019s Most Powerful Mobster.\u201d<\/p>\n<\/div>\n

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More stories like this are available on bloomberg.com\/opinion<\/a><\/p>\n<\/div>\n

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