On September 1, 2021, the most restrictive abortion law in the country went into effect in Texas. Known as the “Texas Heartbeat Act,” the statute, which creates a new subchapter of Chapter 171 of the Texas Health and Safety Code, privatizes a right of action against people who aid and abet abortions in violation of the new law.
More specifically, the statute provides that “any person” other than a state actor can bring an action against “any person” who:
knowingly engages in [or intends to engage 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, if the abortion is performed or induced in violation of this subchapter, regardless of whether the person knew or should have known that the abortion would be performed or induced in violation of this subchapter...(emphasis added).
How could this affect employers?
First, how broadly will courts define “conduct that aids or abets”?
- What if an employer grants a woman time off of any kind (PTO, unpaid leave, FMLA leave) that she uses for an abortion in violation of the law?
- What if an employer’s insurance covers the cost of what is later found to be an “illegal” abortion?
- What if an employer provides employee assistance program benefits to a woman who chooses, after the use of such services, to have an “illegal” abortion?
Second, who can be sued? Individual employees? The corporate entity? Both? The statute does not define the term “person,” and based on the concept of corporate personhood, corporations are also persons with the rights to sue and be sued.
And third, would an employer have to violate HIPAA to qualify for an affirmative defense? It is an affirmative defense under the statute if the defendant “reasonably believed, after conducting a reasonable investigation,” that the physician performing or inducing the abortion would comply with the law. What is a “reasonable investigation”? Would HR or benefits employees need to directly contact a woman’s healthcare provider to determine the precise nature of the services to be performed prior to approving any type of leave or other related benefit?
The Bill analysis by the House Public Health Committee https://trackbill.com/bill/texas-senate-bill-8-relating-to-abortion-including-abortions-after-detection-of-an-unborn-childs-heartbeat-authorizing-a-private-civil-right-of-action/2067179/ fails to address what are serious potential liability issues, created by a poorly drafted statute, for employers to consider.
Employers can contact me at firstname.lastname@example.org for additional information.