Rethinking Reproductive Healthcare Benefits After Roe: Three Initial Benefits Questions for Employers to Consider

The U.S. Supreme Court released their final opinion in Dobbs v. Jackson Women’s Health Organization on June 24, 2022.  Justice Alito’s opinion closely tracked the draft opinion that was leaked on May 2, 2022.  The opinion holds: “The Constitution does not confer a right to abortion; Roe and Casey are overruled; and the authority to regulate abortion is returned to the people and their elected representatives.”  From a practical perspective, this opinion means there is no longer a federal constitutional right to an abortion and that the right to obtain an abortion will be governed by state law.  In this regard, the decision triggered a flurry of new state laws restricting abortions and caused various pre-Roe state abortion laws to spring back into effect (“anti-abortion laws”).  The anti-abortion laws raise numerous employee benefits issues.  Below are three initial post-Roe questions for employers to consider.   

In at least 26 states, civil and/or criminal state anti-abortion laws are, or will soon be, effective in response to Dobbs.  Employers should pay attention to state anti-abortion laws nationwide, as many group health plans cover employees or dependents living out-of-state (e.g., college students or remote workers). 

Some state anti-abortion laws potentially impose civil or criminal liability on benefit plans and/or related persons.  Texas, for example, permits civil actions against “any person” who “knowingly engages in conduct that aids or abets . . . an abortion.”  It is not clear which “persons” (e.g., plans, plan fiduciaries, plan sponsors, officers, etc.) these laws encompass.  ERISA preemption may shield self-funded group health plans from some state anti-abortion laws, but the issue will likely need to be litigated before it can be determined with certainty that a given law is preempted.  In addition, the U.S. Supreme Court is the final arbiter of ERISA preemption and some commentators have expressed that the Court may not follow ERISA preemption precedent as applied to abortion issues.  In the meantime, employers should consider which state anti-abortion laws might apply and who might be liable for violations of such laws. 

Many group health plans cover abortions that are now illegal (to varying degrees) in certain states because of the Dobbs decision.  Plan sponsors should consider reviewing their plan documents and amending them, as needed, to ensure their plan language complies with applicable state law.  For example, plan sponsors might adopt a plan amendment clarifying that their plan only covers abortions if legal where performed.

It may be a good time for employers to review their reproductive health benefits (i.e., pregnancy, IVF, abortion, etc.) to see if changes are appropriate to meet employees’ needs.  For example, employers might consider whether to expand coverage for legal elective abortions, legally-provided abortion medication, and/or over-the-counter pregnancy-related products (e.g., pregnancy tests or Plan B).  Some employers are considering providing travel benefits for abortions or reproductive services, but that may create issues under applicable state law. 

Before making any changes to abortion-related services, employers should consider working with counsel to carefully consider: (1) potential civil or criminal liability under state anti-abortion laws and the possibility of being subject to investigations by state agencies in states with anti-abortion laws; (2) federal and state taxation issues; (3) applicable federal benefits laws that may apply to such benefits (e.g., ERISA, HIPAA, Mental Health Parity Acts, etc.); and (4) proper plan documentation and notice requirements.

For information about the post-Roe implications for patients and providers, see the SW Health Law Checkup blog, “Post-Roe Access to Abortion in Arizona:  Implications for Patients and Providers.”