Dobbs v. Employee Benefits: Major Questions Left After the Landmark Decision

The issue surrounding employers and state abortion laws reached a boiling point when the Texas Attorney General announced that he would prosecute corporations that pay for employees to travel interstate to access abortion care. Before the overturning of Roe, it was common for private employers and companies to cover abortion and abortion-related services to their employees through medical benefits. After the Dobbs decision, dozens of American companies including Disney, Apple, JP Morgan Chase, Adidas, and Airbnb guaranteed abortion benefits for their employees. Thus, it is inevitable that conflicting policies on abortion-related employee benefits and state abortion laws will meet. The likelihood of a clash is heightened by abortion laws like Texas’s Senate Bill 8, which grants any person the civil right to take legal action against individuals or companies that violate the law. It is only a matter of time before a state or private individual sues a company or plan, which will then rely on ERISA as a defense. While companies and employers are likely to have some protection under ERISA against expanding state abortion laws, the extent and the outcome of how the Supreme Court would rule on the matter is clouded with issues and potential uncertainties with ERISA, its preemption clauses, and agency powers.

To protect employee benefit plans from differing state laws, Congress included in ERISA an express preemption clause that expressly supersedes state laws related to employee benefit plans. The Supreme Court has also found implied preemption in several ERISA cases as well. The preemption doctrine is based on the Supremacy Clause, which holds that the “Constitution, and the Laws of the United States . . . shall be the supreme Law of the Land.” Both ERISA’s express and implied preemption have been used by courts since its passing to preempt state laws that attempted to regulate employee benefit plans. Legal scholars and attorneys argue that ERISA’s preemption could be used by federal courts to strike down or limit unfavorable abortion laws that relate to an employee benefit plan. While potentially viable, there remain numerous issues and questions with both the Dobbs decision and recent precedent surrounding the power of regulatory agencies.

In its 2023 Term, the Supreme Court overturned long-standing precedent that gave deference to some agency interpretations of federal law. In Chevron USA, Inc. v. Natural Resources Defense Counsel, the Court had held that where Congress has delegated enforcement of a statute to an administrative agency and also delegated rulemaking authority to that agency, courts must give substantial deference to that agency’s reasonable interpretations of the statute where the statute is silent or ambiguous. In Loper Bright Enterprises v. Raimondo, the Court overturned Chevron, holding that the doctrine was inconsistent with the Administrative Procedure Act. ERISA and employee benefit plans are regulated and overseen by an ERISA Advisory Council under the Department of Labor (DOL) division known as the Employee Benefits Security Administration (EBSA). While the Court in Loper Bright Enterprises cautioned that its opinion did “not call into question prior cases that relied on the Chevron framework,” the removal of that agency deference may undermine efforts by the DOL or EBSA to interpret ERISA in a manner that could be used to preempt an abortion state law.

Loper Bright Enterprises is not the only new limit on agency power. In a recent landmark case, West Virginia v. EPA, the Supreme Court held that Congress must provide clear direction to the Environmental Protection Agency, rather than a broad delegation of power, for the agency to regulate greenhouse gas emissions. This ruling strikes a shift in administrative agency power from a broad delegation of power, permissible under historical standards, to a more limited range through an emerging doctrine known as the “major questions doctrine.” The major questions doctrine holds that courts should not defer to agencies on matters of “vast economic or political significance” unless the U.S. Congress has explicitly given the agencies the authority to act in those situations. West Virginia was the first Supreme Court decision where the major questions doctrine was cited and invoked by a majority of the Justices. Even if Chevron’s overruling would not have an impact, if the DOL or EBSA attempted to interpret ERISA in a manner that could be used to preempt an abortion state law, it is likely that the major questions doctrine would be found to apply and would likely limit the agency’s abilities of rulemaking and guidance on the subject.

The decisions in Loper Bright Enterprises and West Virginia signal a shift in the trust that the Supreme Court has for administrative agencies and could lead to further usage of the major questions doctrine to reject agency claims of regulatory authority. With little to no judicial precedent for courts to rely on regarding preemption under ERISA and state abortion laws, and with no administrative agency ability to interpret or clarify whether ERISA can be used to preempt state abortion laws, federal courts are left dealing with a complex and undefined issue. If EBSA or the DOL were to enter the debate, the Supreme Court could easily minimize any administrative agency action or interpretation.

The Dobbs decision has led to a substantial change in individual rights and has created a gray area with employee benefit plans. Little precedent is available as to whether companies and corporations can be held accountable under state abortion laws for providing abortion benefits. The Dobbs decision compounds an already complex area of law and calls into question industry-wide corporate employee benefit plans. Further complicating the matter, a recent shift of the Supreme Court majority to limit deference to agency interpretations potentially inhibits EBSA and agencies from issuing guidance or interpretations to clear up the uncertainties and complexities, which in turn can lead to turmoil for companies and employee benefit plans, courts, and employees.

I. Background

ERISA covers several fields, but this article will only highlight the portions that are relevant to medical employee benefits. As discussed above, employee benefits are the extra benefits or “perks” that an employer voluntarily provides to its employees. The benefits are provided by employers through employee benefit plans, which can be separated into either pension plans or welfare plans. Employee benefit plans are then controlled and administered by fiduciaries. ERISA section 3(21)(A) defines a fiduciary as a person who exercises discretion or control with respect to the plan or its assets. Fiduciary status may arise in one of two ways: either by being named a fiduciary under the plan document or qualifying as a fiduciary under ERISA’s functional definition. Fiduciaries have multiple duties and have the authority to control and manage the operation and administration of the plan. The fiduciaries of a plan would be the individuals being sued under state abortion laws and are the individuals who face the most risk when it comes to employee benefit plans.

A. Employee Benefit Plans and ERISA

1. History of Employee Benefits

The rise in employee benefits traces back to the beginning of the Industrial Revolution, but benefits have continued to modernize with the workforce into the twenty-first century. While some benefits are mandatory through the law, employers voluntarily offer other employee benefits for several reasons. These reasons include the ability to attract and retain qualified employees, create good employee morale, increase productivity, or receive favorable tax treatment. With the rise of employee benefits, so too have employee benefit plans become more common in the workplace. Plans can be unique and offer different services depending on what the employer is willing to provide or cover. Today, plans and benefits are regulated and governed by ERISA and several federal statutes and agencies.

Before the enactment of ERISA, employee benefit plans were regulated and governed through the Welfare and Pension Plans Disclosure Act (WPPDA) and federal income tax and labor laws. Notable events in the early 1960s began to publicly highlight the shortcomings of the federal laws and their failure to provide adequate protection to employee benefit plan participants and beneficiaries. After more than a decade of committee hearings, reports, and studies on the problems with the existing federal and state regulation of plans, Congress drafted and passed ERISA, which was then signed and enacted into law on Labor Day in September 1974. ERISA has four main titles, each administered and regulated by separate entities of the federal government. Title I of ERISA contains the relevant portions for employee benefits and is administered by the DOL, more specifically EBSA. ERISA’s scope has been developed through statutes and by EBSA, and courts and legal scholars have also debated its coverage and limitations. The Supreme Court alone has handled over 400 ERISA-related cases since 1974, averaging just under nine ERISA cases a year. Since its enactment, ERISA has also been legislatively amended substantially numerous times. These amendments have increased the power of ERISA over the years, as well as the responsibility and roles of EBSA and the DOL.

2. Healthcare Employee Benefit Plans

The United States has a unique approach to health care, as it relies principally on voluntary employment-based health insurance instead of a mandatory universal national healthcare system. Employers are not forced by law to provide coverage or offer healthcare plans to their employees; however, larger employers may be taxed for failing to do so. The Affordable Care Act (ACA) imposes an excise tax on employers with at least fifty full-time employees who fail to offer their employees the opportunity to enroll in affordable “minimum essential coverage” under an eligible employer-sponsored healthcare plan. However, if the employer is willing to pay the fees for not providing coverage, it has no legal obligation to provide health insurance or benefits to the employee.

Employers and companies that provide healthcare benefits and insurance to their employees are required to follow ERISA’s rules and regulations. ERISA requires that all employee benefit plans be established and maintained pursuant to a written instrument. In addition, ERISA requires that plan documents contain four specific features. Discussions surrounding one of these four requirements, ERISA section 402(b), have increased as of late. ERISA section 402(b) contains a plan amendment procedure that generally allows employers the ability to amend an employee benefit plan at any time if there is a procedure set in place for amending that plan. The use of the plan amendment procedure was discussed after the Dobbs decision as a tool for employers to amend or clarify a plan’s term on abortions to protect from potential lawsuits or penalties.

Another provision being discussed after Dobbs is section 510 of ERISA, which prohibits employers from interfering with employees’ rights. ERISA section 510 could arguably be used to protect an employee’s right to travel out of state to receive an abortion in a state where it is legal. Finally, ERISA section 502(a)(3) authorizes a plan participant, beneficiary, or fiduciary to bring a suit “to enjoin any act or practice which violates any provision of this subtitle or the terms of the plan, or to obtain other appropriate equitable relief (i) to redress such violations, or (ii) to enforce any provision of this subtitle, or the terms of the plan.” The Supreme Court has described section 502(a)(3) as a “catchall provision” or as a “safety net, offering appropriate equitable relief for injuries caused by violations that section 502 does not elsewhere adequately remedy.” This clause does not limit whom it can be brought against in terms of defendants. An employer or plan fiduciary could potentially file a lawsuit under section 502(a)(3) against a state official where the state law would require the employer or fiduciary to do something contrary to the plan, such as subjecting a plan paying for out-of-state abortion benefits to criminal or civil liability.

3. Financing Employee Benefit Plans

How employers finance their health plans significantly impacts the plan under ERISA and the ACA. Employers typically finance their employee health benefit plans in one of two fundamentally different ways. The first is through the purchase of insurance and coverage from an insurance company. The second is by the employer directly paying for the employee’s health care claims and coverage. The importance of the funding, particularly which financial option is used, plays a substantial role in the plan’s regulation under ERISA and the ACA. Below the two types of funding options are discussed further in detail.

a. Self-Funded Plans

Under a self-funded plan, the employer acts as its own insurer and assumes direct financial responsibility for the costs of the covered individuals’ medical claims. Having a self-funded plan means that, rather than paying premiums to an insurance company, the employer directly pays the cost of health care claims to providers, but also bears the risk of unexpectedly large claims that may arise. Sixty-four percent of total covered workers, including twenty-one percent of covered workers in small companies and eighty-two percent in large companies, are enrolled in self-funded plans. While the ACA provides numerous incentives for employers to use self-funded plans, not all employers can afford to bear the risk that is associated with a self-funded plan. To protect themselves financially, small employers have turned to the idea of stop-loss insurance. Stop-loss insurance allows employers with self-funded plans to purchase insurance, or “reinsurance,” that covers the plan’s losses. The insurance covers costs above a stated level, either at a specific point or at an aggregate point. Stop-loss insurance has been described as blurring the line between fully insured and self-funded plans. Because of this, as well as the fact that some employers exploit the legal distinction between self-funded plans and fully-insured plans, states have begun to enact laws that ban or regulate stop-loss insurance policies.

b. Fully Insured Plans

In a fully insured plan, an employer hires and works with an insurance company, pays the premium to the insurance company, and the insurer then assumes financial responsibility for the costs of the covered employees’ medical claims. The insurance company is the one that bears the risk for any covered claims made by the employees and their dependents. Small employers are much more likely to provide coverage through a fully insured plan than larger employers. This is the case even with the recent incentives provided by the ACA to increase the number of small employers under self-funded plans.

B. Preemption Under ERISA

In the second section of ERISA, Congress announced findings and a declaration of policy for its enactment. On several occasions, the Supreme Court has referred to Congress’s purposes and findings in enacting ERISA, which “is to protect plan participants and beneficiaries” and to promote uniformity of law and reduce the administrative burden of having to comply with multiple laws. To protect the uniformity of ERISA and its congressional purposes, Congress enacted an express preemption provision in section 514 of ERISA, which “supersedes” all state laws that relate to an employee benefit plan. The Supreme Court has found implied preemption in several ERISA preemption cases as well. The preemption doctrine is based on the Supremacy Clause, which holds that the “Constitution, and the Laws of the United States . . . shall be the supreme Law of the Land.” In the context of state abortion laws, the issue of preemption would arise when a plaintiff sued a defendant (likely a company or plan fiduciary), alleging that the defendant violated the state’s abortion law by providing abortion-related benefits. The defendant would then remove the case to federal court on the grounds of ERISA preemption, to which the plaintiff would bring a motion to remand. It is thus important to understand how the courts analyze ERISA preemption cases to comprehend whether a state abortion law would be preempted.

1. Express Preemption

ERISA section 514 contains a three-part express preemption provision that has been heavily litigated, often causing legal scholars to view express preemption as complex and difficult. ERISA section 514(a) starts with the question of whether a state law “relates to an employee benefit plan.” If it does, then the state law is preempted under section 514(a). If the state law is found preempted under ERISA section 514(a), the second step in the preemption analysis turns to the “saving clause” question. Section 514(b)(2)(A) of ERISA states that, “except as provided in the [deemer clause], nothing in [ERISA] shall be construed to exempt or relieve any person from any law of any State which regulates insurance, banking or securities.” Thus, state law is “saved” under the saving clause if it regulates insurance, banking, or securities, even if it relates to an employee benefit plan. As suggested by the language of the saving clause, ERISA also includes a “deemer clause” that creates an exception to the saving clause for fully funded plans, allowing the analysis to proceed to the final question of whether the employee benefit plan is self-funded or fully funded. If it is not self-funded, then the deemer clause does not apply and the state law is not preempted. Below is an illustration of the three-step process under ERISA’s express preemption clause.

a. “Relates to an Employee Benefit Plan” Clause

Step one of ERISA’s express preemption is often described as the heart of the ERISA preemption inquiry. The term “relates to” is not defined by ERISA; rather, the Supreme Court has focused on defining the meaning of the term through case law. Recent precedent from Rutledge v. Pharmaceutical Care Management Ass’n reconfirms the majority rule established in Shaw v. Delta Air Lines that “[a] state law relates to an ERISA plan if it has a connection with or reference to such a plan.” Thus, when inquiring whether a state law “relates to” an employee benefit, the Court focuses on whether the state law has a (1) connection with, or (2) reference to such a plan.

In deciding whether a state law has a “connection with” a benefit plan, the Court first noted in FMC v. Holiday that a state law had a “connection with” a benefit plan where a “patchwork scheme of regulation would introduce considerable inefficiencies in benefit program operation,” and that the preemption clause applied “to ensure that benefit plans will be governed by only a single set of regulations.” However, the Court cut back and limited this definition of the term “relate to” in New York State Conference of Blue Cross & Blue Shield Plans v. Travelers Insurance Co. In Travelers, the Court declared that it should begin a preemption analysis in an ERISA case with a presumption against preemption. The Court then looked to the objectives of the ERISA statute as a guide, and noted that “[t]he basic thrust of the preemption clause, was to avoid a multiplicity of regulation in order to permit the nationally uniform administration of employee benefit plans.” In summary, according to its recent precedent in Rutledge, the Court must ask whether a state law “governs a central matter of plan administration or interferes with nationally uniform plan administration,” and, if it does, the Court should find that the state law “relates to” an employee benefit plan.

The narrower “reference to” prong has been interpreted by the Court to find that a state law has an impermissible reference to an employee benefit plan if it acts immediately and exclusively on the plan or if the existence of a plan is essential to the law’s operation. In essence, if a state law expressly references ERISA plans or refers to employee benefit plans, it is likely to be found preempted under the “reference to” prong. If the Court determines that a state law “relates to” an employee benefit plan, either through a connection with or reference to such a plan, it assumes that the law is preempted and proceeds to analyze the saving clause and whether the law regulates insurance, banking, or securities.

b. The Saving Clause

The saving clause of section 514(b)(2)(A) provides an express exception to the general preemption provision discussed above: it “saves” from preemption state laws that regulate insurance, banking, or securities. The issue of whether a state law regulates banking or securities rarely arises, especially in the case of employee healthcare benefits. Thus, the focus of the analysis tends to be on whether a state is regulating insurance. At the time of ERISA’s enactment, Congress kept the trend of states, rather than the federal government, handling and managing the regulation of insurance. The Court first addressed the question of whether a state law regulated insurance for purposes of the saving clause in Metropolitan Life Insurance Co. v. Massachusetts, where it created a three-factor test to determine whether a state law regulated insurance. The current test for determining whether a state law regulates insurance under the saving clause derives from Kentucky Ass’n of Health Plans v. Miller. Under the Miller test, a state law regulates insurance if it (1) is “specifically directed towards entities engaged in insurance” and (2) substantially affect[s] the risk pooling arrangement between the insurer and the insured.” The Court found that the first requirement is met if the state law is “specifically directed toward” the insurance industry. As with the second prong, in Miller, the Court ruled that the statute substantially affected the types of risk pooling arrangements that insurers could offer because it increased the number of healthcare providers from whom insured individuals could receive health services.

c. The Deemer Clause

ERISA section 514(b)(2)(B), better known as the deemer clause, restricts states from trying to pass a state law under the protection of the saving clause unless that law truly engages in the business of regulating insurance. In one of the few cases in which the Supreme Court has addressed the deemer clause, the Court stated, “We read the deemer clause to exempt self-funded ERISA plans from state laws that ‘regulate insurance’ within the meaning of the saving clause.” The Supreme Court has thus interpreted the deemer clause to create a dichotomy between self-funded plans and fully insured plans. Under the current reading of the deemer clause, ERISA preempts state laws regulating insurance of self-funded plans, but insurance plans are subject to indirect state insurance regulation. The Supreme Court’s ruling on the deemer clause shows that, while states can regulate health insurers through the saving clause, states cannot directly regulate self-insured plans. The saving clause together with the deemer clause precedent creates an incentive for employers to self-fund or self-insure their employee benefit plans.

d. Generally Applicable Criminal Law

ERISA’s express preemption contains a little-known and little-used exception that would be relevant to criminal state abortion laws and could potentially be used to shield state laws from preemption. ERISA section 514(b)(4) states that express preemption “shall not apply to any generally applicable criminal law of a State.” However, ERISA does not define “generally applicable criminal law,” and there is almost no legislative history and very little case law interpreting this language. The DOL has not dealt extensively with the “generally applicable criminal laws” clause but has issued guidance that suggests states could enforce criminal laws against plans and administrators, so long as the laws do not specifically target plans. Court precedent on the matter holds that “generally applicable criminal laws” are those that apply to all persons in the state, such as laws against larceny and embezzlement. Conversely, a law that purports to specifically impose criminal sanctions on an employee benefit plan or its administrator is not a “generally applicable” criminal law. Uncertainty remains as to what role this exception would play concerning employee benefit plans and criminal state abortion laws.

2. Implied Preemption

Implied preemption has been recognized in two main circumstances; the first is so-called “complete preemption,” where the court finds that a federal statute so wholly occupies a particular field that there is no room left for state action, and the second is when state laws are found to “actually conflict” with federal law or when state law “stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” The use of implied preemption under ERISA adds another layer that states are required to overcome after express preemption. Even if the state law was saved from express preemption, the state law could fall and be found preempted under the implied preemption doctrine.

C. Major Questions Doctrine

Traditionally, under Chevron deference, when determining whether a court should grant deference to a government agency’s interpretation of a statute, courts would first ask whether Congress has directly addressed the issue. If it has not, then the agency’s interpretation would be found valid if it is a reasonable interpretation of the statute. Considered one of the most important principles in administrative law, deference is a cornerstone to both administrative agency law and power. Yet, in recent years, even before it was overruled, Chevron faced massive erosion from a changing Court and a newly coined doctrine: the major questions doctrine.

In West Virginia v. EPA, the Supreme Court officially opined for the first time in a majority opinion on the major questions doctrine. The majority held in West Virginia that Congress must provide clear direction to the EPA agency, rather than a broad delegation of power, for the agency to regulate greenhouse gas emissions. In West Virginia, the Court cited its decisions in Utility Air Regulatory Group v. Environmental Protection Agency (EPA) and National Federation of Independent Business v. Occupational Safety and Health Administration, where the Court had noted that even though the regulatory assertions at issue had a colorable textual basis, in each case, given the various circumstances, “common sense as to the manner in which Congress [would have been] likely to delegate” such power to the agency at issue, made it very unlikely that Congress had done so. A year before the West Virginia case, the Court ruled against “the CDC’s eviction moratorium, stating that it was of major national significance and required a clear statutory basis because the agency’s action covered 80% or more of the nation; created an estimated economic impact of tens of billions of dollars; and interfered [in an area of law that was ‘the particular domain of state law.’” Much like ERISA preemption, the major questions doctrine focuses on legislative intent and the congressional purpose(s) of the statute. However, the decision in West Virginia highlights other points that the Court analyzes in a major questions doctrine analysis, with the majority noting that the Court also “‘typically greets’ assertions of ‘extravagant statutory power over the national economy’ with ‘skepticism.’” Even though the major questions doctrine is considered a novel doctrine, the Supreme Court has continued to build precedent around it, lending it weight and meaning.

The origins of the doctrine can be traced back to 1994 in MCI Telecommunications Corp. v. American Telephone & Telegraph Co., and then again six years later in FDA v. Brown & Williamson. After the decision in Brown & Williamson, the major questions doctrine fell dormant until a Supreme Court decision fourteen years later in Utility Air Regulatory Group v. Environmental Protection Agency (EPA). After the decision in Utility Air, the major questions doctrine gained increased attention. In several recent opinions, the Supreme Court has placed an increased amount of emphasis on the major questions doctrine when evaluating agency power. The 2014 opinion in Utility Air bundled and smoothed together the standards set out by the Court in MCI Telecommunications and Brown & Williamson, yet it also has been used by the ideologically shifting Court as a launch board for the major questions doctrine to place strict limitations on agency powers.

The major questions doctrine would no doubt have a direct role should EBSA release guidance or attempt to interpret ERISA in a manner that would preempt state abortion laws. While the major questions doctrine remains novel, much of the precedent surrounding it points to a strong likelihood of its involvement in this issue, as the issue of abortion and regulation of abortion laws would likely concern an issue of vast economic and political significance. I believe that the debate and analysis would center around the second portion of the doctrine; whether there is too broad a delegation of power to EBSA and the DOL, and whether Congress specifically intended to allow the DOL to interpret ERISA to overrule state abortion laws.

II. Analysis

A. ERISA and State Abortion Laws

Until June 24, 2022, whether ERISA preempted state anti-abortion laws was a non-existent issue, as abortion was a protected reproductive right under the precedents set in Roe and Planned Parenthood of Southeastern Pennsylvania v. Casey. After the release of the decision in Dobbs however, using ERISA’s preemption as a defense has become a realistic tactic to protect both plans and companies from potential lawsuits. While courts could find that ERISA preempts every single state abortion law under implied preemption, I believe that it is extremely unlikely that they would do so. While several state abortion laws are similar, many of them vary and encompass different requirements and limitations on abortions. Thus, this article will divide abortion laws into three main categories: traditional abortion laws, laws that regulate insurance companies, and “unique” abortion laws.

1. Traditional State Abortion Laws

Traditional abortion laws are state laws that make receiving or providing an abortion an illegal action and assign some form of civil or criminal punishment. While the scope and restrictions of the state laws may vary, forty-four states have some form of prohibition on abortions after a certain point in pregnancy, with twelve states completely banning abortion, nine states banning abortion at twenty-two weeks pregnant, and fourteen states imposing a ban at viability. Traditional abortion laws differ from what I call insurance and “unique” abortion laws because the traditional laws only regulate doctors and abortions in that state, and because they directly prohibit women from obtaining or doctors from performing an abortion.

Traditional abortion laws are not likely to be preempted under section 514 of ERISA. As in Travelers, courts would likely have a presumption against preemption when conducting an ERISA analysis into a traditional state abortion law. Under the first prong of ERISA’s express preemption, a court would have difficulty finding that state laws that exclusively relate to banning an individual from receiving an in-state abortion “relate to” an employee benefit plan. Traditional abortion laws do not expressly reference ERISA plans or employee benefit plans, nor do the laws govern a central matter of plan administration or interfere with a national uniform plan administration. Further, it is unlikely that a traditional state abortion law would conflict with ERISA, making it extremely difficult for a court to find that a traditional state abortion law would relate to an employee benefit plan.

Still, the lack of an objective test could lead to ambiguity and circuit splits depending on the circuit or makeup of the court. One court could find a traditional state abortion law preempted through implied preemption, while another could find that it is not preempted and well within the state’s right to regulate. A judge could find that subjecting fiduciaries, plan administrators, or employers to the burden of complying with multiple conflicting laws frustrates the congressional intent of having one uniform statute. While doubtful, I believe it is possible that a court could also find that a traditional state abortion law interferes with the administration of a nationally uniformed plan. Determining the federal law’s objectives and whether a conflict exists between the law and state law is difficult and subjective and has caused issues for judges in past decisions.

Finally, if a court reached the opinion that the law was expressly preempted, it would have to analyze whether the law would fall under the exception of being a “generally applicable criminal law,” exempt from preemption. As mentioned, the application of the exception in this setting would be uncharted territory. Yet, I find it unlikely that this exception would apply, as the law would not apply uniformly to all persons in the state but solely to women and doctors. Men cannot have abortions. While some doctors are men, not all men are doctors. Thus, there would be a section of the state populace that a traditional abortion law would not apply to; meaning that the law is not “generally applicable” and therefore not protected under the exception.

As discussed, it is highly unlikely that a court would find a traditional state abortion law expressly preempted, and unlikely that a court would find that implied preemption applied. This does not mean though that all courts would necessarily rule in this way; the lack of precedent on the matter surely invites discussion and discretion. The discrepancy that exists regarding ERISA’s preemption leaves open an opportunity for EBSA to clarify the confusion on the matter either through adjudication or the rulemaking process. Doing so, however, could invite application of the major questions doctrine and the agency’s authority to issue rules or adjudication on the matter. The Supreme Court could rule that Congress did not delegate this authority and that, unless Congress specifically allows the DOL to overrule abortion prohibitions, preemption would not apply. Until the Court issues a rule for ERISA preemption on this matter, there remains a chance that confusing or conflicting judicial decisions may result in several different outcomes, depending on the court.

2. State Abortion Laws Regulating Insurance

Numerous states have enacted laws that regulate insurance coverage of abortion. Twenty-five states restrict abortion coverage in plans offered through health insurance exchanges, twenty-two restrict abortion coverage in health insurance plans for public employees, and eleven states have laws in effect restricting insurance coverage of abortion in all private insurance plans written in the state. State abortion laws regulating in-state insurers and limiting those insurers’ policies on abortion fall within the protected exemptions established in ERISA’s express preemption, even if the regulation “relates to” employee benefit plans.

Applying the first step in an ERISA express-preemption analysis starts with the question of whether a state law relates to an employee benefit plan. Simple licensing laws for insurance agents would not relate to employee benefit plans, but laws that directly prohibit abortion coverage or limit coverage of abortion to certain circumstances would relate to an employee benefit plan. As explained above, if the law does not relate to an employee benefit plan, then it faces no preemption, but, if it does, then it is preempted unless otherwise saved under ERISA’s saving clause. Supreme Court precedent holds that states have the power and protection under ERISA’s saving clause to tell the insurers in their state what they must or must not include in the insurer’s policies sold in that state. As explained in Metropolitan Life Insurance Co., states can require health insurance policies and benefit plans to provide certain coverage or benefits to cover a specified illness or procedure without having the mandated benefits law preempted under ERISA. Therefore, with the ability to require coverage, it follows that states also can exclude abortion benefits from insurance policies.

Insurance laws regulating abortions are also not likely to be preempted by ERISA under implied preemption for two reasons. First, Congress clearly intended to leave room for state action and allow the states to be able to regulate insurance companies within their state, as seen with the inclusion of the saving clause. Second, state insurance laws do not “actually conflict” with federal law or stand as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress, again, because the saving clause shows that Congress intended to allow states to continue to regulate insurance. Thus, states can bar insurance companies from covering abortion rights and will likely continue to do so under the protection of the saving clause of ERISA.

Anti-abortion insurance laws only cover a slim majority of companies and workers—those who have fully insured plans. Self-insured plans, which make up more than a majority of the plans for covered employees, do not deal with insurance companies and thus are not impacted by insurance laws. The “deemer” clause found in section 514(b)(2)(B) of ERISA further cements the protection of self-funded plans and their freedom from substantive regulation from states that attempt to classify them under the scrutiny of state insurance laws. This then means that states cannot rely on the saving clause if the state law is found to “relate to” benefit plans. States are also unlikely to find the protection to regulate self-funded plans under the “generally applicable criminal law” exception, as precedent holds that a law that purports to specifically impose criminal sanctions on an employee benefit plan or its administrator is not a “generally applicable” criminal law. Thus, while it is well within a state’s power to regulate insurance companies and therefore fully-insured plans, a state is limited in its ability to regulate abortion coverage in self-funded plans that relate to employee benefit plans.

3. Unique’ Abortion Laws

Before the release of the Dobbs decision, state lawmakers were required to find ways around the protections set in Roe. This in turn led to “unique” abortion laws and regulations that are still in place after Dobbs. Following the Dobbs decision, states have the freedom to regulate abortions as they see fit, provided that their regulations are rationally related to legitimate governmental interests and do not contravene federal law. Some states have begun to adopt and pass unique abortion laws after the Dobbs decision, which has raised questions about how these state laws impact individuals and thus employee benefit plans. This article divides unique abortion laws into three main categories: aiding and abetting, reporting, and abortion bounty-­hunter laws.

a. Aiding-and-Abetting Abortion Laws

According to Section 171.208 of Texas Senate Bill 8 (S.B. 8), a civil suit may be brought against any individual who knowingly engages in conduct that aids or abets the performance or inducement of an abortion, including paying for or reimbursing the costs of an abortion through insurance or otherwise. A bill recently introduced in Missouri, similar to S.B. 8, not only would allow the state to prosecute a person who aids another in obtaining an abortion within Missouri but also would allow the state to prosecute an individual assisting traveling to a state where the abortion would be legal. Aiding-and-abetting laws could thus best be characterized as any civil or criminal law that makes any act of assisting a person in obtaining an abortion through payment, travel, advising, or other means. The idea of aiding-and-abetting laws in both a civil and criminal setting is not new, but their applicability and usage as a type of state abortion law have increased ­recently. The issue of whether a company can be held liable for aiding and abetting an employee’s abortion has come to the forefront, especially with states threatening to limit companies that assist or cover abortion benefits for their employees. I believe it is likely that a company may seek to rely on ERISA as a defense against a state law claim for aiding and abetting an employee’s abortion.

Whether state law is subject to ERISA express preemption falls squarely under the “relates to” prong. The first prong of ERISA section 514(a) provides that if a state law “relates to” an employee benefit plan, then it is preempted. The Court’s precedent holds that a state law relates to an ERISA plan if it has a connection with or reference to such a plan, with the Court also valuing congressional intent and the state law’s impact on ERISA. While the Seventh Circuit has found that aiding-and-abetting laws are constitutional, a court might struggle to find the same outcome applied to an employer or plan fiduciary. First, aiding-and-abetting laws directly impact the governing of “a central matter of plan administration,” as it forces an ERISA plan to adopt a certain scheme of substantive coverage and requires that providers structure benefit plans in a particular way. Further, the state law would directly interfere with the employer’s nationally uniform plan administration, as discussed in Rutledge. If a court were to find that the law related to employee benefit plans, I believe that a court would find that the plan was not protected under the saving clause because these laws are not directed at insurance companies. It is unlikely, then, that a state aiding-and-abetting abortion law would survive an ERISA challenge if raised as a defense.

Even though state aiding-and-abetting abortion laws likely face express preemption, an argument for applying the “generally applicable criminal law” exception holds weight. Aiding-and-abetting laws apply uniformly to any individual who assists a person in obtaining an abortion, whether the person is male, female, old, or young. While court precedent holds that a state law that purports to specifically impose criminal sanctions on an employee benefit plan or its administrator is not a “generally applicable” criminal law, an argument could be made that general aiding-and-abetting state laws do not specifically target employee benefit plans or administrators. I believe that an ­aiding-and-abetting criminal state law found expressly preempted would likely be protected under the “generally applicable criminal law” exception, but a civil state law would likely be found by a court as expressly preempted.

There does remain the possibility that a court does not find that a state aiding-and-abetting law is preempted under express preemption but does find it preempted under implied preemption. The law could be viewed as frustrating Congress’s purpose and intent of uniformity of law and increasing the administrative burden of companies by forcing them to comply with multiple laws. The Supreme Court has found that laws that are not explicitly preempted may be impliedly preempted. Yet, a court might be hesitant to enhance the power of ERISA’s implied preemption so greatly. Preempting a generic aiding-and-abetting state abortion law would drastically enhance the power of ERISA far beyond what Congress likely intended. An express preemption clause already exists within the statute, showing that, while Congress intended ERISA to have preemption powers, Congress also intended for such preemption powers to be limited to certain contexts. Thus, a court could potentially find a state abortion law preempted under implied preemption, but it is unlikely a court would do so.

b. Reporting Laws

State abortion reporting laws are currently the most common abortion regulation laws. Forty-six states and the District of Columbia require hospitals, facilities, and physicians providing abortions to submit regular and confidential reports to the state; twenty-eight states require providers to report post-abortion complications; sixteen states require providers to give some information about the patient’s reason for seeking the procedure, and eight states require providers to indicate the method of payment, such as insurance or self-pay, for the procedure. Abortion reporting laws can be civil or criminal and range from those that require everyone to report abortions, to those laws that only require doctors or clinics to report abortion information. A great example of a reporting law is that of Minnesota, which, for a time required three separate forms to be submitted with the state’s reporting system to comply with the statutory requirements. The depth of reporting laws results in a large variety among the states. Under ERISA’s express preemption, laws that relate to self-funded employee benefit plans and that are not directed at insurance are ruled ­preempted. Likely, most state abortion reporting laws would not be found to relate to employee benefit plans. If the reporting law does relate to an employee benefit plan, the analysis then moves forward to the second prong. If the state abortion reporting law regulates insurance, then it is saved under ERISA’s saving clause. However, if the employee benefit plan is self-funded, then the state law is preempted under the deemer clause. The issue then of whether an employee benefit plan is self-funded significantly impacts the outcome of whether a state law is preempted; this has recently been the focus of the Supreme Court.

The Supreme Court recently analyzed the issue of reporting laws regulating self-funded plans in Gobeille v. Liberty Mutual, where it considered whether a Vermont law requiring all healthcare funders (including those of self-insured plans) to share healthcare cost information with the state was preempted. The Supreme Court found that preemption of the Vermont law was necessary to prevent the imposition of the novel, inconsistent, and burdensome reporting requirements on employee benefit plans. The Court found that the state reporting statute imposed duties that were inconsistent with the central design of ERISA: to provide a single uniform national scheme for the administration of ERISA plans without interference from the laws of several states. In contrast, the Minnesota reporting law does question how the individual paid (either through private coverage, public assistance health coverage, or self-pay), as well as the type of health coverage the individual is using (fee for service plan, capitated private plan, other/unknown), but does not require the healthcare funders to disclose or does it require as much detail as the Vermont law. While a majority of state abortion reporting laws like Minnesota’s do not relate to employee benefit plans, the minority of state laws like Vermont’s that do would likely fall under the precedent set by the Supreme Court in Gobeille.

c. Bounty-Hunter Laws

In recent years, bounty-hunter abortion laws have gained traction in states looking to create “an abortion-free state.” Bounty-hunter laws are like aiding-and-abetting abortion laws but have several distinct features, as these laws allow private citizens to file a civil lawsuit against anyone who knowingly “aids or abets” an abortion, and, if successful, the plaintiff(s) are awarded at least $10,000 in damages from the defendants. The most well-known example of an anti-abortion bounty-hunter law is Texas’s Senate Bill 8 (S.B. 8). S.B. 8 subjects to civil liability any person who performs or aids an abortion performed by a Texas-licensed physician (or intends to perform or aid such an abortion) after the existence of a fetal heartbeat, or around six weeks of pregnancy. The law relies on private citizens rather than the Texas government to enforce it. S.B. 8 was passed before the Dobbs decisions and was used by Texas and other states as a way around the precedent set in Roe. The bill survived numerous federal challenges from the Biden administration in court, prompting several conservative states to adopt similar “copycat” laws both before and after the Dobbs decision.

Several issues arise between ERISA and these types of laws. In addition to the issues discussed previously with aiding-and-abetting laws, S.B. 8 does not limit citizens’ ability to sue either an individual for getting an abortion out of state or an employer who has a benefits plan that provides for out-of-state abortions. There has been little opportunity for the courts to test the law’s civil enforcement mechanism, although that is likely to change. Recently though, the conversation around the subject heated up, with the Texas Attorney General stating that he was planning to prosecute corporations that pay for employees to travel interstate to access abortion care. The conversation around this issue has led to questions about whether such an action is legally viable.

The likelihood of express preemption increases significantly under bounty-hunter laws, as they directly relate to both an ERISA plan and its fiduciaries. The Court has held that a state law that expanded liability standards against fiduciaries was preempted under ERISA, and bounty-hunter laws arguably do the same thing by allowing private citizens to file a lawsuit against anyone who knowingly “aids or abets” an abortion. The bounty-hunter laws directly impact the governing of “a central matter of plan administration,” as they force an ERISA plan to adopt a certain scheme of substantive coverage both in-state and out-of-state. This in turn then requires that providers structure benefit plans in a particular way, which is directly in opposition to the recent Supreme Court precedent set in Rutledge. Since bounty-hunter laws directly relate to an employee benefit plan, the next step requires a court to examine whether the state law regulates insurance. Neither S.B. 8 nor any of the other bounty-hunter laws make any mention of regulating insurance, meaning that the saving clause will not apply. Texas S.B. 8 and other bounty-hunting laws are likely then to be found expressly preempted under ERISA.

The main difference between aiding-and-abetting laws and bounty-­hunter laws is the fact that bounty-hunter laws are typically civil, whereas aiding-and-abetting laws can be both criminal and civil. As discussed above, criminal aiding-and-abetting state abortion laws are protected under the “generally applicable criminal law” exception. Bounty-hunter laws do not get this same protection. While criminal aiding-and-abetting state laws are saved from preemption under the “generally applicable criminal law” exception, the bounty-hunter laws have nothing to save them should a court find these laws expressly preempted.

B. Major Questions Doctrine

Before the introduction of the major questions doctrine, the DOL and EBSA could have potentially interpreted ERISA to preempt state abortion laws that disrupt ERISA’s goal of providing a single uniform national scheme for the administration of ERISA plans, and before Loper Bright Enterprises, the courts would likely have deferred to that interpretation. But the introduction and strengthening of the major questions doctrine by the majority in the Supreme Court highlights the beginning of a new era of limitations of agency power, and likely limits the DOL and EBSA from making such broad interpretations. If the agencies were to boldly make such interpretations, they could in turn invite courts to erase the analyses of state abortion laws discussed above and lead to ERISA’s express and implied preemption powers being severely limited in the future. The lack of precedent with the doctrine in this area of law leaves many questions unknown, yet some projections as to how the Court might rule on the matter should it be presented with the issue can be made.

The major questions doctrine provides that courts should not defer to agencies on matters of “vast economic or political significance” unless Congress has explicitly given the agencies the authority to act in those situations. The issue of state abortion laws and regulation no doubt concerns an issue of “vast economic and political significance.” Because state abortion laws are not mentioned in ERISA, Congress did not explicitly give EBSA and the DOL the ability to overrule state abortion laws. One could argue that the interpretation of ERISA to preempt state abortion laws is to too broad of a delegation. It is likely that the Court would not completely strike ERISA’s preemption powers but, instead, strictly limit ERISA’s implied preemption powers and how the DOL can interpret them in the future. There is also the possibility that the Court could take another route, whether that be by completely avoiding the issue altogether or continuing the trend from the Rutledge decision of strengthening ERISA’s preemption. How the Court would rule using the major questions doctrine first depends on whether (1) the particular rule adopted affects a matter of vast economic or political significance, and (2) whether the Court finds that Congress has clearly given the DOL and EBSA the authority that they exercise.

1. A Matter of Vast Economic or Political Significance

The novelty of the major questions doctrine raises several questions and issues. The Court has not clearly explained when an agency’s action will raise a question so significant that the major questions doctrine should apply, nor has the Court specified what legislative acts could constitute clear congressional authorization. While there is no clear red line as to how the Court would apply the doctrine, recent precedent could shed some light on the matter. In National Federation of Independent Business v. OSHA, the Court considered the COVID vaccine mandate made through an OSHA emergency temporary standard to be of major economic and political significance because, in the Court’s estimation, “it seriously intruded upon the lives of more than 80 million people.” In Alabama Ass’n of Realtors v. Department of HHS, the Court found that the CDC’s eviction moratorium, also a pandemic mitigation measure, was of major national significance because it covered eighty percent or more of the nation, had an economic impact affecting billions of dollars, and intruded into an area that is the particular domain of state law.

Based on this recent precedent relating to what qualifies as a major economic or political significance, it is likely that abortion would involve a matter of vast economic or political significance. Over a hundred million women live in the United States. Abortions have a significant impact on both the United States and individual states’ economies. As noted by the majority decision in Dobbs, the issue of abortion and the decision in Roe “sparked a national controversy that has embittered our political culture for a half-century.” That same decision noted that the “authority to regulate abortion must be returned to the people and their elected representatives,” identifying it a state issue, not a federal government issue. I believe that the Court would likely find the matter of adjudicating or interpreting ERISA to preempt state abortion laws qualifies as a “matter of vast economic or political significance.”

2. Congressional Intent

The Supreme Court has consistently referred to, and relied upon, Congress’s purposes and intent in enacting ERISA when deciding whether state law will be found expressly preempted. The major questions doctrine also focuses on congressional intent, and whether Congress has given an agency the authority to act in a specific situation. ERISA’s regulations and their enforcement by EBSA as an extension of the DOL are an extension of agency power. It is likely the Court would first turn to ERISA’s enactment and Congress’s intent at the time when deciding whether ERISA has the power to preempt state abortion laws.

At the release of the decision in Roe, only six states and Washington, D.C. had legalized abortions. Little over a year after the release of the Roe decision, ERISA was signed into law. During this period, abortion was a highly controversial and debated topic, yet there is no mention of abortion in either the 1974 ERISA bill or in the debate on the bill. The fact that abortion was not discussed or mentioned surrounding the signed bill could be attributed to the fact that the issue of abortion was moot after the Roe decision, but this could be flawed reasoning. The bill was introduced on January 3, 1973, two weeks before the Roe decision was released and when abortion was still illegal or limited in a majority of states. As ERISA’s express preemption was an included clause in the introduced bill, Congress could have discussed or limited its ability to preempt the several state abortion laws that existed at the time. The issues surrounding abortions were still prevalent after the Roe decision but before the signing of ERISA; the 93rd Congress introduced several bills relating to abortion, including an amended act that was passed and signed into law that contained a clause limiting funds toward abortions. Yet, it remains unclear whether Congress explicitly gave DOL the authority to interpret or use ERISA as a preemption tool against state abortion laws.

The precedent set in West Virginia requires that the agency point to “clear congressional authorization” for the authority that it claims. Since the decision in Roe, Congress has enacted several laws relating to the issue of abortion, none however outright banning or legalizing the right to an abortion. ERISA has been amended several times by Congress since its passing, yet no discussions surrounding the amendments shed light on whether ERISA can preempt state abortion laws. Much of ERISA’s preemption powers stem from the precedent set by the Supreme Court and the DOL, not from amendments to ERISA by Congress. If the Court were to require the government to point to “clear congressional authorization” beyond its express preemption powers from Congress to preempt state abortion laws, it would likely fail to do so.

The DOL and EBSA attempting to interpret ERISA to preempt state abortion laws would likely be subject to a major questions doctrine analysis because (1) abortion is a matter of vast economic or political significance, and (2) it is unclear whether Congress has explicitly given the DOL and EBSA the authority to overrule state abortion laws. The outcome of the Court’s decision in such a case would depend on several factors, like the make-up of the bench, how far the Court is willing to limit agency power, the state law being challenged, and how the Court will value stare decisis. However, I believe that there is another path that the Court could take that would not require it to overturn precedent on ERISA’s express or implied preemption. The Court in a previous decision noted that, when interpreting ERISA’s preemption, “courts may have to take account of competing congressional ­purposes.” This statement means that the Court could simply conduct a balancing test between any secondary congressional purpose and that of ERISA’s preemption purpose over the state abortion law. The Court could find that while the congressional purpose behind ERISA’s preemption of the law weighs heavily, it does not outweigh the secondary congressional purpose, whatever that may be. This would allow the Court an easy out by providing the ability to protect its recent decision in Dobbs without having to overturn its recent precedent in ERISA preemption cases.

Conclusion

The Dobbs opinion has formulated major questions that have left scholars, judges, and individuals with few answers. While it is likely that most of the traditional and insurance state abortion laws would survive ERISA preemption, I believe that most of the unique state abortion laws would not. With diverse state abortion laws, it becomes difficult to administer an employee benefit plan uniformly throughout the various states. Yet, recent changes in administrative law have left EBSA and the DOL in a stark position to attempt to uphold the uniformity of plans and challenge the disruption.

The rise of the major questions doctrine limits agencies from issuing guidance or broadly interpreting ERISA to preempt state abortion laws. The Court would likely rule against the DOL and EBSA because it would find under the major questions doctrine that the issue is a matter of vast economic and political significance and that Congress did not expressly give the DOL and EBSA the power to overrule state abortion laws. The majority would look to the congressional history of ERISA preemption, find no mention of state abortion laws, and likely find that the agency exceeded its delegated authority over a “historical” state power and issue. In the words of Justice Alito in the majority opinion in Dobbs, the “[right to] regulate abortion must be returned to the people and their elected representatives,” not administrative agencies. Unfortunately, this statement signals the unlikelihood of resolving the major question for ERISA created by the landmark decision and finding a solution to the rising dis-uniformity of administering multistate employee benefit plans.