Justice Dept. Employees Urge Administration to Grant Leave for Out-of-State Abortions

WASHINGTON — Justice Department employees pressed the Biden administration on Wednesday to grant federal employees time off if they or their family members need to travel out of state to obtain abortions.

The request puts the administration in a potentially tricky position: either denying a benefit even as several large companies have made accommodations in the area, or granting one that pits it against state governments that restrict access to the procedure.

Members of a group dedicated to gender equity, the Department of Justice Gender Equality Network, sent a letter asking the administration to “swiftly consider” the move two weeks after a leaked draft opinion showed that the Supreme Court was poised to overturn Roe v. Wade. Should the court do so in June or early July, about half the states are likely to strictly curb abortion or ban it outright.

Granting leave to employees who must travel to obtain an abortion is akin to the time off that federal employees received to obtain coronavirus vaccinations, the group argued.

“The administration mandated agencies to grant federal employees administrative leave so that they or their family members can obtain Covid-19 vaccinations for their ‘health, safety and physical and mental well-being,’” the group said in the letter. “Likewise, the administration should be able to provide federal workers with a reasonable amount of administrative leave to access reproductive health care for their health, safety and physical and mental well-being.”

The letter was sent to the White House’s budget office and Gender Policy Council as well as the Office of Personnel Management. A Justice Department spokeswoman declined to comment.

Given that the federal government is the nation’s largest employer, granting leave “would send a powerful message to America — and in particular, American employers,” said Stacey Young, the president of the Department of Justice Gender Equality Network.

As of now, about 150,000 federal employees in Texas and Mississippi have little access to abortion, and an additional 227,000 federal employees in 11 other states could immediately lose access to the procedure if the Supreme Court overturns Roe, the group said.

Already, several large companies, including Amazon, Citigroup and Yelp, have said they will cover some expenses for employees who must travel to receive certain medical procedures that are prohibited by state law, including abortion.

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

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What 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, a lawmaker 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.

“There could be a separate fight over whether the federal government, by simply providing leave, creates a defense for those employees,” Mr. Vladeck said.

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