When the Supreme Court returned regulation of abortion to the states in its decision in Dobbs v. Jackson Women’s Health Organization in June 2022, employers responded with a flurry of statements promising to provide abortion coverage and related benefits for employees across the country. At the time of the publication of this Note, over 150 million Americans rely on employer-sponsored health insurance, underscoring the critical role that employers play in retaining and expanding abortion access for millions of women across the country. Since Dobbs, a patchwork of ever-changing abortion regulations has been enacted around the country. Some states have enacted so-called “bounty hunter” laws that allow private citizens to sue anyone who helps to fund an abortion; some states require private insurance plans to provide abortion coverage, while others forbid it.
Employers who want to provide abortion coverage for their employees, especially large employers spanning multiple states, must contend with these laws when designing benefit plans. Employers will resist providing abortion coverage if they are at a high risk of liability, but, as this Note argues, there are innovative ways for employers to structure health benefit plans to take advantage of both federal preemption and state law protections. This Note builds on the arguments raised by Brendan Maher in his article Pro-Choice Plans, providing a thorough guide for employers who are willing and able to create innovatively structured benefit plans and reassuring employers that they can provide their employees with abortion coverage with a low risk of potential liability.
* J.D. Candidate, 2025, University of Illinois College of Law; B.A., 2017, Amherst College. Thank you to the University of Illinois Law Review staff, editors, and members for their work on this Note and the 2025 volume. Special thanks to Professor Anderson for his valuable guidance throughout the note-writing process and for helping me understand the complications of ERISA. I dedicate this Note to my mother, for her unwavering support and love throughout law school and life, and for always inspiring me with her work ethic, intelligence, empathy, and generosity.
The full text of this Note is available to download as a PDF.