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Reproductive Rights: FAQs for Employers in New Jersey – JD Supra



  1. Is abortion nonetheless authorized in NJ?

Sure, abortion remains to be authorized in New Jersey. Abortion is an impartial and basic proper protected by each the New Jersey Structure and state laws.[1] The USA Supreme Court docket’s determination in Dobbs v. Jackson Girls’s Well being Group does not diminish abortion rights and entry in New Jersey.

  1. What sorts of bills do individuals searching for abortion face?

Abortion-related medical and non-medical bills might current a severe barrier to accessing care, notably for lower-wage staff in states the place abortion is banned or restricted, who might must journey lengthy distances to get a authorized abortion. In keeping with the Henry J. Kaiser Family Foundation, the vast majority of self-pay, first trimester abortions value about $600.[2] Associated bills might embrace airfare, rental automobile, fuel, lodging, meals, and childcare, and these prices could also be doubled if the affected person must journey with a companion. Non-medical bills might complete 1000’s of {dollars}, making abortion unaffordable for many individuals.[3] The Federal Reserve Board stories that 35% of People do not need adequate money, financial savings, or credit score to cowl a $400 emergency expense.[4]


  1. What sort of authorized legal responsibility might a New Jersey employer face if it pays for out-of-state workers’ journey to New Jersey for abortion care?

New Jersey employers which are contemplating paying for out-of-state workers to journey to New Jersey for abortion care ought to seek the advice of a lawyer to evaluate potential authorized dangers. It stays unclear how states with abortion bans or restrictions (“ban states”) will search to implement current prison prohibitions on “aiding and abetting” or in any other case helping their residents in acquiring abortions, whether or not ban states will enact legal guidelines that expressly punish helping a affected person to journey for an abortion, and the way courts will reply to the extraterritorial utility of such legal guidelines. Additionally it is unclear whether or not courts will entertain cross-state civil fits underneath legal guidelines that purport to authorize non-public residents to sue individuals who assist others get hold of abortions.

For an summary of state abortion legal guidelines, you’ll be able to examine these assets:

Legal and civil legal responsibility publicity depends upon numerous components, together with the states the place your workers are positioned and whether or not your organization presents a self-insured plan (topic to the federal Worker Retirement Revenue Safety Act of 1974, referred to as “ERISA”) or a totally insured plan regulated by state regulation. An employer that provides abortion care and medical journey advantages by means of an ERISA plan could also be much less uncovered to potential civil causes of motion introduced underneath state legal guidelines due to ERISA’s broad battle preemption provisions.[5]


  1. What sort of help are employers providing workers who must journey for an abortion?

With federal safety for abortion eradicated, many employers are contemplating how they’ll help workers who reside in states the place entry to abortion shouldn’t be out there.[6] This unofficial database tracks responses from some massive employers, together with firm statements and insurance policies on paying journey prices and offering paid time without work.

Employers who want to increase advantages ought to seek the advice of with an worker advantages lawyer concerning the easiest way to construction new or expanded worker advantages (e.g., medical, psychological well being, journey, childcare, paid time without work, and authorized providers advantages). Employers can also wish to search authorized counsel on how greatest to guard the privateness of workers who use the expanded advantages.[7]

As a place to begin, some employers are conducting a self-audit to establish what medical, journey, paid time without work, and different advantages their present insurance policies cowl; whether or not their present profit plan imposes obstacles to well timed and reasonably priced abortion care (equivalent to excessive deductibles and community supplier limitations); and whether or not advantages must be expanded to advertise well being care entry on the whole. Employers with workplaces in states that ban abortion might wish to contemplate worker relocation and distant work insurance policies for workers who want to transfer out of such states.

  1. What are the tax implications of offering these advantages?

Except an employer offers a profit by means of a versatile spending account (FSA), well being financial savings account (HSA), or a well being reimbursement account (HRA), paid advantages supplied by an employer typically will likely be deemed taxable revenue to the worker underneath Inside Income Code Part 61. Accordingly, employers will likely be answerable for withholding employment taxes on profit funds.

  1. The place can I be taught extra?

We share this useful resource as plain language steering for NJ employers. Varied regulation corporations and worker advantages consultants have revealed detailed articles on authorized compliance and profit structuring choices which you’ll want to evaluation. A few of these articles are: Employer-Paid Travel Assistance for Interstate Abortion Access (Lowenstein Sandler, June 29, 2022); Impact of Dobbs v. Jackson Women’s Health Organization for Employer-Provided Health Benefits (Ropes & Grey, June 27, 2022); Considerations for Employers and Employer Plan Sponsors Related to Potential Changes in the Effect of Roe v. Wade (Morgan Lewis, Might 6, 2022).

[1] N.J.S.A. § 10:7-1(a) (“[T]he New Jersey Supreme Court docket has acknowledged that the proper to reproductive alternative is a basic proper enshrined within the State Structure, that this proper is impartial of the USA Structure . . . .”); N.J.S.A. § 10:7-2(a) (“Each particular person current within the State, together with, however not restricted to, a person who’s underneath State management or supervision, shall have the basic proper to . . . select whether or not to hold a being pregnant, to provide start, or to terminate a being pregnant. The New Jersey Structure acknowledges the basic nature of the proper to reproductive alternative, together with the proper to . . . terminate a being pregnant . . . .”); Proper to Select v. Byrne, 91 N.J. 287, 306 (1982) (holding that individuals have a “basic proper” to make “one of the intimate choices in human expertise, the selection to terminate a being pregnant or bear a toddler”); Deliberate Parenthood of Cent. N.J. v. Farmer, 165 N.J. 609, 612–13 (2000) (similar).

[2] KFF, Employer Protection of Journey Prices for Out-of-State Abortion (Might 16, 2022),; see additionally Enterprise Insider, Fuel, Meals, and a Resort: People Looking for An Abortion Out of State Already Shell Out As much as $10,000 for the Process (June 24, 2022),

[3] Enterprise Insider, supra observe 2; see additionally Fed. Res. Bd., Financial Nicely-Being of U.S. Households in 2020 – Might 2021,

[4] Fed. Res. Bd., supra observe 3.

[5] See Part 514(a) of ERISA, codified at 29 U.S.C. 1144(a); see additionally Concerns for Employers and Employer Plan Sponsors Associated to Potential Modifications within the Impact of Roe v. Wade Morgan Lewis (Might 6, 2022),

[6] Andrew E. Graw, Julie Levinson Werner, and Batool T. Banker, Employer-Paid Journey Help for Interstate Abortion Entry, Lowenstein Sandler (June 29, 2022),

[7] Varied profit construction concerns are addressed within the Andrew E. Graw article, supra observe 6.

This doc is for informational functions solely, shouldn’t be supposed as authorized recommendation, and doesn’t substitute for consulting with a lawyer about your explicit information and circumstances. This doc doesn’t represent a solicitation, and your use of this doc doesn’t create any attorney-client relationship between you and Lowenstein Sandler. We don’t signify that the content material of this doc is right, full, or up-to-date, or that it displays present authorized developments.



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