Questions about interstate law enforcement on abortion issues

I sent this email below to Preet Bharara this morning in attempt to gather information on this topic of immediate concern to some of our clients.

Thank you for the work you do. I’m a Cafe subscriber listening to your interview with Jeannie Suk Gersen now.

As an employee benefits adviser for small business clients in various jurisdictions, a key issue of immediate concern is understanding the risks of prosecution of individual employees who legally obtain an abortion where it is available, and the potential risks to employers who may cover such services in their employee benefit plans:

  • Can a state prosecutor be successful in obtaining otherwise confidential employee medical benefit records through subpoena for an employer in the state for medical treatments outside of the state?
  • If so, would this access to medical records be true for all employees regardless of their state or nation of residence? Or would it be true only for individuals and/or employers and/or providers domiciled within their state?
  • Does domicile (of an individual, business or provider) play a role here? Or is this primarily a location of contract/services issue?
  • Presuming this is an issue where the risks may vary from one state to another, how would a citizen with interstate life experiences (residence, employment, travel) gauge the risks from one state to another?
  • Mainstream news sources (like NPR yesterday), have legal experts offering advice to otherwise ordinary law abiding citizens on how to evade law enforcement on abortion issues. This seems unprecedented. Can you comment? What are the practical boundaries of law enforcement avoidance that individuals and employers should be aware?

Any source of guidance or opinion you may be able to offer is appreciated.

Regards, Tony

Tony Novak CPA, MBA, MT
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