Release Date: June 27, 2022
On June 24, the U.S. Supreme Court, in Dobbs v. Jackson Women’s Health Organization, held that a woman does not have a constitutionally protected right to an abortion at any point in time from conception forward. The decision ended nearly 50 years of legal precedent established in Roe v. Wade in 1973. The effect of the Dobbs decision was to remand to each of the individual 50 states the decision of how they wish to regulate abortion. This will entail a patchwork of varied approaches to abortion, with many states outlawing it altogether or criminalizing it, that will present new health plan challenges to employers that have employees living in any state that either currently prohibits abortion or may severely limit its availability in the future. Employers should prepare for questions from employees in the coming days about whether their ability to secure an abortion under the health plan has been curtailed, and, if so, whether there is a solution the employer wishes to make available to the employee.
States That Currently Ban Abortion or Are Expected to Quickly Ban or Severely Restrict Abortion in the Near Future
Given the recency of the Dobbs decision and the fluidity of state action, employers with employees living in several states are encouraged to periodically review the status of abortion services. The following is a list of 13 states that have trigger laws that will automatically, or will shortly, ban abortion in the event of the reversal of Roe v. Wade: Arkansas, Idaho, Kentucky, Louisiana, Mississippi, Missouri, North Dakota, Oklahoma, South Dakota, Tennessee, Texas, Utah, and Wyoming. See https://www.guttmacher.org/article/2022/06/13-states-have-abortion-trigger-bans-heres-what-happens-when-roe-overturned. It is expected that additional states may move to either eliminate, criminalize, or severely restrict a woman’s right to choose to pursue abortion services. See https://www.kff.org/womens-health-policy/press-release/abortion-in-the-united-states/.
States That Currently Have Laws Protecting the Right to an Abortion
All New England states and several states in the Northeast allow abortion services. Overall, approximately half of the states have protected a woman’s right to abortion services, achieved through state legislation or their state court system. See https://www.kff.org/womens-health-policy/slide/16-states-and-dc-have-state-laws-protecting-the-right-to-abortion-if-roe-v-wade-is-overturned.
Fully Insured Guidance
There should be no health coverage change for abortions in states that, either through their own legislation or state court system, allow for a woman to avail herself of an abortion. We expect that health insurers will be issuing statements in short order on how, if at all, their fully insured coverage for abortion services will be impacted in these states. As an example, the following is part of the statement issued by Blue Cross Blue Shield of Massachusetts on June 24:
“As a health care organization, we believe strongly that our members should have access to the care they need and want. While abortion services will remain legal in Massachusetts based on a 2020 state law, we will work closely with our employer customers to evaluate the potential impact to our members in other states and determine how we can best support them.
Among the steps we’re taking to support our members outside Massachusetts, we have developed a travel benefit that employers may choose to offer to employees who need to travel 100+ miles to obtain access to abortion services (either surgical or medication-assisted). This will enable reimbursement of certain travel and lodging expenses related to obtaining care. This benefit also will be available to BCBSMA employees who live in states where abortion access is legally restricted.
Our team at BCBSMA is already carefully reviewing today’s ruling to ensure that we are doing everything we can to support members and employees who may be affected.”
Forthcoming Self-Funded Guidance
Some companies are offering to pay a fixed amount, through their health plan, for an employee or their family member to travel from a state that prohibits abortion to a state that allows for it. Alternatively, some are considering the allowance of an out-of-network solution if it is more economical. There is also focus on the availability of abortion by prescription/pill as opposed to medical procedure. Employers with self-funded plans will want to work with their health plan’s TPAs and brokers to see if this is a feasible approach for employees and their family members residing in states that prohibit abortion. There may also be a need to amend ERISA plan documents. More information is expected in the near future from the health insurance/third-party administration sector.
The issue of the continued availability of abortion services in employer-sponsored health plans deserves focus by employers, with an appreciation for its increased fluidity and complexity for employers with employees living in states that now, or will shortly, prohibit abortion services.