How two Oregon companies plan to help out-of-state employees access abortion

When the constitutional right to abortion vanished, Kim Malek, the CEO of Salt & Straw Ice Cream, acted quickly. Within hours, the Portland-based company promised to pay travel expenses for employees who need to leave their home states to access abortion.

Salt & Straw has about 100 workers at scoop shops in Florida, where a contested state law bans most abortions after 15 weeks.

“These sorts of restrictions put women’s health in jeopardy, for a lot of different reasons,” Malek said. “So, we sort of leapt in the deep end, knowing that we would figure it out as we go along.”

When the U.S. Supreme Court overturned Roe v. Wade, a flurry of businesses announced they would cover travel costs for employees who face abortion bans or restrictions at home. Oregon heavyweights Nike, Adidas and Columbia Sportswear all pledged to support employees seeking abortion.

So how will this work?

Who would a Nike salesperson in Alabama need to go through to access an abortion? Could Columbia be sued for helping a worker in Texas? The large companies declined to go into further detail.

But two smaller Oregon companies, with fewer resources, agreed to share their decision-making as they navigate a patchwork of abortion bans and restrictions.

Health insurance may be key to abortion-travel benefits

At Salt & Straw, chief people officer Todd Woodruff suddenly became their new policy’s chief mechanic.

“We’re going to do this because it’s the right thing to do. Now we have to figure out how to do it,” he said.

Rick Watson wrestled with the same question at Northwest Confections, which makes cannabis edibles and CBD products under the brand name Wyld.

“So many unknowns. So many moving parts right now,” said Watson, the director of culture and employee engagement.

Wyld operates in multiple states, including Arizona, which is poised to restrict abortion and could ban it outright. The company is about to open a facility in Oklahoma, which banned abortions with few exceptions. Oklahoma law also allows civilians to sue anyone who helps pay for abortions.

Wyld expects to add dozens of employees in Oklahoma this year. So, how would those workers access travel money for abortion?

“It will need to be part of our health insurance plan,” Watson said.

Wyld is waiting to see if its insurer will add language covering travel if reproductive care, including abortion, isn’t available within a reasonable distance. Some insurance plans already reimburse medical travel when specialty care or certain procedures aren’t offered nearby.

Under that scenario, claims would go through insurance.

But what if the insurer says no?

“That is the million-dollar question,” Watson said. “I really believe that our health care provider is doing everything they can to support us in this.”

Large companies may have an advantage here. Businesses such as Intel and Columbia Sportswear are self-insured, which means they pay their own health care costs. That gives them more flexibility to design their own health plans, which could include travel for reproductive care as a benefit. Federal law should shield those plans from state insurance laws that might forbid such reimbursement.

Smaller businesses, such as Wyld and Salt & Straw, usually buy health insurance for their employees. Private insurers will have to assess which of their policies are subject to which states’ regulations — and what that means for the underlying benefits.

Salt & Straw plans to pay abortion-travel costs upfront

Shortly after the ruling, Salt & Straw had its initial plan in place. For now, it expects to pay for abortion-related travel outright rather than through insurance.

“(Employees) would actually call into a hotline number that we have set up that would go directly to HR,” said Woodruff.

The company’s goal is to start booking travel and lodging within 48 hours of an employee’s request — paying in advance, rather than reimbursing expenses as other businesses have promised.

Woodruff said many workers in the service industry don’t have the cash to travel to another state, even if they’re reimbursed later.

“In many cases, our front line is struggling to go to school and work part-time,” he said. “And to have an emergency fund of $1,000 or even $500 is more rare than you would imagine.”

Even if travel reimbursement were possible through Salt & Straw’s health insurance, there’s an access problem. Some part-time staff doesn’t work enough hours to get health coverage. Malek, the CEO, wants the abortion-travel benefit to be available to everyone.

Salt & Straw plans to shop supplemental insurance policies it hopes all employees could get. But Woodruff said options aren’t available yet for a company their size.

Oregon businesses wary of legal threats from other states

Looming over all of this are the legal risks.

Both Oklahoma, where Wyld is expanding, and Texas, where Salt & Straw has a handful of employees, allow people to sue anyone who “aids and abets” abortion.

States could also pursue criminal liability down the road. Some conservative lawmakers already plan to target out-of-state employers.

A group of Texas legislators told Lyft in May that it will introduce legislation barring corporations from doing business in Texas if they pay for employees to travel out of state for abortions.

Their proposal would also impose felony liability on executives of public companies that pay for elective abortions — or travel — without the unanimous consent of shareholders. Intel, Nike, Adidas and Columbia Sportswear are all public companies with thousands of Texas employees between them.

It’s unclear how much support these Texas lawmakers have for their plan.

There are also constitutional questions about how far states like Texas can extend their reach beyond state lines.

“I think there’s a big difference between the risk of getting sued and the risk of these laws actually standing up in court,” said Sarah Ames Benedict, a Portland-based employment litigator at Davis Wright Tremaine LLP. The firm’s clients include large businesses navigating these issues. (It also provides outside counsel to OPB.)

Gov. Kate Brown and other West Coast governors have pledged to protect residents targeted by other states for helping people access legal abortions in Oregon, Washington or California. That includes refusing to extradite residents facing criminal prosecution in other states.

“There’s a variety of different challenges that we know are coming for these state laws. It doesn’t mean, though, that the state can’t try to make an example of any one particular company,” Ames Benedict said.

Both Wyld and Salt & Straw say their leadership is committed to figuring this out, even if the legal landscape is fraught.

“I am from Texas originally. My family lives in Texas,” said Woodruff of Salt & Straw. “And I was having this conversation with my mother-in-law, how scary this is. The threats of actually helping someone get the care that they need.”

He said it was important for Salt & Straw to quickly tell employees where it stood. Now, it must build the landing gear while the plane’s in mid-air.