Trump insiders have also discussed these ideas, according to one person with direct knowledge of the talks.
The proposed change could make it vastly more difficult for residents of states with abortion bans to obtain abortions by traveling out-of-state, legal experts say, even as out-of-state travel for abortions doubled between the first half of 2020 and the first half of 2023, according to data from the Guttmacher Institute, which supports abortion rights.
More than 170,000 patients traveled across state lines in 2023 to seek abortions, the institute’s data shows.
The Heritage Foundation, which has been heavily involved in policy proposals for a Trump second term, has recommended that the Labor Department and Congress “should clarify” that federal labor regulations for employer-sponsored health-care plans “should not be allowed to trump states’ ability to protect innocent human life in the womb.”
A separate proposal being considered by Trump labor advisers would rescind a new federal rule that takes effect this month requiring most U.S. employers to offer “reasonable accommodations” for their workers related to pregnancy and childbirth, including time off for abortions, according to one of the people with direct knowledge of labor policy discussions among Trump advisers.
Karoline Leavitt, a national press secretary for the Trump campaign, said in a statement that Trump “has long been consistent in supporting the rights of states to make decisions on abortion,” calling Joe Biden and the Democrats “radically out of touch with the majority of Americans in their support for abortion.”
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The proposals are being floated among Trump’s antiabortion allies, as the former president continues to navigate his own position on abortion while trying minimize voter fallout over abortion restrictions, amid a tight election race against President Biden.
Trump’s stances on reproductive rights have proved hard to pin down. He released a video in April saying the issue of abortion should be left up to states. Then in late May, he suggested in an interview with a Pittsburgh television station that states should be able to restrict access to birth control. But later that same day, Trump posted on Truth Social that he “WILL NEVER ADVOCATE IMPOSING RESTRICTIONS ON BIRTH CONTROL.”
Although data is hard to come by, thousands of women are accessing abortions by traveling out of state, and it’s likely that they are using private-employer insurance to do so, said Liz McCaman Taylor, senior federal policy counsel at the Center for Reproductive Rights, a legal advocacy group that supports abortion rights.
Forcing private-employer insurance to exclude abortion coverage would have a “huge impact on women,” McCaman Taylor added, including “a chilling effect” on those seeking abortions even if they do not have employer-sponsored health care.
“These changes make people very fearful because the real-life consequences are potentially jail, and people losing their freedom, losing the ability to come home to their children at night,” McCaman Taylor said.
About half of companies with at least 200 employees cover some abortion services under health insurance plans, according to a 2023 survey of firms by KFF, a nonprofit health policy research organization.
There’s no guarantee that policymakers would pursue these plans should Trump win in November. Conservative groups with ties to the former president are sharply divided over abortion, with some holding the view that further restricting abortion access is a losing political strategy, while the religious right within Trump’s circle of influence seeks to further erode abortion access. How tough a second Trump administration would be on abortion access depends on whom he selects to fill key leadership roles, conservative policymakers say.
Several GOP policy advisers downplayed the likelihood a Trump Labor Department would take this step, pointing out that the campaign has appeared wary of embracing additional policies that could fuel the backlash to the fall of Roe v. Wade.
In response to a request for comment, the Trump campaign batted down the proposals to restrict health insurance coverage and end the abortion accommodation at work, directing The Washington Post to a past statement from advisers Susie Wiles and Chris LaCivita, which said that the news media has “been all-to-willing to continue using anonymous sourcing and speculation about a second Trump administration in an effort to prevent a second Trump administration.”
Wiles and LaCivita added that “no aspect of future presidential staffing or policy announcements should be deemed official,” unless it’s coming from Trump or an authorized member of his campaign.
Jonathan Berry, the author of Heritage’s proposal to change federal labor law around abortion for private-employer health insurance, and a former assistant secretary in the Labor Department during the Trump administration, is widely viewed as one of Trump’s leading advisers on labor issues. Berry is also a potential candidate for a senior position in the Labor Department under a new Trump administration, according to two conservative policy experts.
The proposal to restrict employer-sponsored abortion access would be implemented via the Labor Department, through the law that regulates employer-sponsored private health insurance for Americans, known as the Employee Retirement Income Security Act of 1974, or ERISA. For the millions of people with private-employer-sponsored health care, ERISA allows employers to enact uniform health-care plans across the states where their employees reside.
Brendan Maher, a law professor at Texas A&M University whose research focuses on ERISA, said that altering the federal law to carve out abortion-related benefits under ERISA would “would meaningfully reduce access to abortion in the United States.”
While not all private-employer-sponsored insurance covers abortion, ERISA’s rules say that should an employer choose to cover abortion, it can do so across all states where it has employees. Current legal doctrine around ERISA allows companies a shield from litigation, experts say. This allows companies to offer abortion benefits in states with bans on insurance coverage of abortions as well as bans against the “aiding and abetting” of abortions.
After news broke in 2022 that Roe v. Wade would be overturned, several major employers, including Amazon, Apple, Bank of America, Disney, Microsoft, Starbucks and Tesla, announced that they would offer travel reimbursement for employees in states that limit abortion access to get abortions elsewhere.
The question of how a Trump Labor Department could modify the law to exclude abortion is highly complicated, and not entirely clear, legal experts said.
Maher noted that while the Labor Department could move to clarify ERISA to exclude abortion benefits, such a move would be likely to be struck down by a court because of ERISA’s “massive preemptive reach over states.”
Meanwhile, Trump advisers are considering revoking a federal rule from the Equal Employment Opportunity Commission (EEOC) that goes into effect this month, requiring employers to provide “reasonable accommodations” for employees seeking abortions. The EEOC is the agency that enforces civil rights laws around workplace discrimination.
The new rule serves as guidance for enforcing the Pregnant Workers Fairness Act, bipartisan civil legislation passed in 2022. It clarifies that employers must provide unpaid time off for workers to get abortions, as part of new accommodations for pregnancy, childbirth and related conditions.
Ending this accommodation “is a massive priority,” for religious organizations, said Rachel N. Morrison, an attorney with the Ethics and Public Policy Center, a conservative think tank, and a former adviser to a Trump appointee at the EEOC. “At the end of the day, this rule is going to hurt pregnant women and their unborn children in the workplace.”
Rescinding the rule would be “a huge deal for everyone that doesn’t work at one of those great, magnanimous companies that decided to announce after Dobbs that they were going to give people paid time off or unpaid time off” to get abortions, said McCaman Taylor, the reproductive rights advocacy attorney, referring to the 2022 case that overturned Roe.
“This rule was for them, and arguably they are the people that need it the most,” she said.
Should the EEOC repeal the rule under Trump, the process would probably be drawn out, legal experts said. To implement the change, the agency would need to wait until it has a Republican majority on its five-member commission, which could take years.
It’s also possible that a federal court will strike down the rule, because in April, a coalition of 17 states with Republican attorneys general sued the agency over the rule for federal overreach.
