The adoption of such policies in the private sector could put pressure on the Biden administration to respond in kind, offering a way for employees to obtain an abortion without having to use their limited sick days and vacation time to do so.
“Employers can choose to provide accommodation, and the federal government is allowed to act like any other employer to a degree,” said Stephen I. Vladeck, a professor at the University of Texas School of Law.
Granting leave could open the federal government up to lawsuits that claim the benefit violates the Hyde Amendment. Under the provision, federal funds cannot be used to pay for abortions, except in special circumstances, like a birth that puts the mother in mortal danger.
Providing administrative leave “would not run afoul of the Hyde Amendment, which restricts the use of federal funding in most cases for an abortion procedure itself, but does not impose restrictions on ancillary accommodations,” the gender equality group argued in its letter.
The State of Roe v. Wade
Card 1 of 4What is Roe v. Wade? Roe v. Wade is a landmark Supreme court decision that legalized abortion across the United States. The 7-2 ruling was announced on Jan. 22, 1973. Justice Harry A. Blackmun, a modest Midwestern Republican and a defender of the right to abortion, wrote the majority opinion.
What was the case about? The ruling struck down laws in many states that had barred abortion, declaring that they could not ban the procedure before the point at which a fetus can survive outside the womb. That point, known as fetal viability, was around 28 weeks when Roe was decided. Today, most experts estimate it to be about 23 or 24 weeks.
What else did the case do? Roe v. Wade created a framework to govern abortion regulation based on the trimesters of pregnancy. In the first trimester, it allowed almost no regulations. In the second, it allowed regulations to protect women’s health. In the third, it allowed states to ban abortions so long as exceptions were made to protect the life and health of the mother. In 1992, the court tossed that framework, while affirming Roe’s essential holding.
What would happen if Roe were overturned? Individual states would be able to decide whether and when abortions would be legal. The practice would likely be banned or restricted heavily in about half of them, but many would continue to allow it. Thirteen states have so-called trigger laws, which would immediately make abortion illegal if Roe were overturned.
Given that no federal money would be used to provide abortion care, it would be harder to make a claim that granting leave violates the amendment, said Melissa Murray, a professor at New York University School of Law.
Granting such a benefit could also pit government employees, and possibly the federal government itself, against states that have moved to limit access to abortion.
If Roe is weakened or overturned, some abortion rights advocates say they expect legislation seeking to further limit abortion access to gain momentum. In Missouri, for example, lawmakers proposed legislation that would allow private citizens to sue anyone helping people cross state lines for an abortion. Legal experts say it is conceivable that federal employees could be sued for violating such a law.