Abortion Impact On Employers – Frequently Asked Questions Answered

Dobbs Decision Overturning Roe v. Wade

Frequently Asked Questions on Impact to Group Health Plans

On June 24, 2022, the Supreme Court of the United States (SCOTUS) overturned Roe v. Wade and Planned Parenthood v. Casey in the opinion Dobbs v. Jackson Women’s Health OrganizationDobbs eliminates a woman’s federal constitutional right to abortion and therefore returns the abortion issue back to the states to regulate.  Below are frequently asked questions (FAQs) addressing employer options and the impact on group health plans because of the Dobbs opinion—including whether an employer can cover abortion through a health benefit plan or reimburse costs incurred when traveling outside of a state to access abortion services.

This information is meant for educational purposes only and is not intended as, nor should it be considered, legal advice. 

Last Updated July 18, 2022

  • Employers should first review whether their plans currently cover, exclude, or limit abortion and determine whether the plan’s terms should be clarified. Generally, if a plan is silent with respect to the coverage of a service or condition, coverage of that service or condition is implied, as long as it is medically necessary.  Plans that do not explicitly address coverage for abortion-related services might consider amending their plans to clearly exclude or provide such coverage.
  • Review the laws of the state in which the plan is domiciled and the states in which treatments are likely to be administered.
  • If the plan’s abortion coverage is unclear, sponsors should amend the plan to clarify it. For instance, if the plan limits abortion coverage to situations in which the mother’s life is at risk, sponsors should consider defining those conditions clearly.  The plan also could be revised to clarify what constitutes a medical emergency necessitating an abortion, the impact that mental health issues have on abortion coverage, and how medical necessity is determined for such coverage.
  • Fully insured plans are governed by state insurance laws and the insurance carrier will be primarily responsible for making any necessary changes to comply with changes in state laws, but it would be wise for an employer to communicate and confirm with their insurance carrier if there are any steps the employer should take.
  • Self-funded plans are governed under federal ERISA law that generally preempts state laws and state insurance laws. A plan sponsor of a self-funded plan therefore has discretion over coverage and should discuss with their TPA any potential amendments to the plan and if there are any potential administrative limits of the TPA. 
  • Sponsors wishing to continue or expand abortion coverage may do so in a number of ways, but they should be mindful of the potential risks and many considerations involved (discussed more below).
  • Notify plan participants of the plan’s coverage or exclusion of abortion and how to get more information.

Dobbs does not prohibit group health plans from covering abortion-related expenses. Instead, Dobbs eliminates federal constitutional protections for an individual to obtain an abortion, which means states now have power to outlaw or severely curtail access to abortion. However, the full answer to this question varies, depending on several factors including whether a group health plan is fully insured or self-insured. See FAQ 3.

  • Self-funded plans are regulated by federal ERISA law that generally preempts state laws and state insurance regulations. Therefore, a self-funded plan has discretion over coverage for abortion and reimbursement for travel expenses related to abortion. If a plan sponsor wishes their self-funded plan to cover abortions, participants would still be restricted in states that have laws limiting or regulating abortion providers or limit the ability of individuals to receive an abortion. So, employers should ensure that any abortion benefit offered under a self-funded plan is limited to benefits to procure a legal abortion in compliance with the laws of the state in which the medical services are rendered. In other words, the plan should only cover abortion services in states where these services are allowed.
  • Fully insured plans are regulated by the state and are subject to state insurance law requirements or state restrictions on abortion. Some states require fully insured plans to cover abortion (e.g., CA, NY, IL, ME, OR, and WA). Other states currently have some level of abortion care restrictions on fully insured plans. Some states have trigger bans that have or will automatically take effect because Roe has been overturned, causing abortions to be disallowed under all or nearly all circumstances. States that ban abortions will likely seek to prohibit insurance policies underwritten in the state from covering abortion, even if the procedure occurs in a state where it is legal.
  • Employers that want to offer abortion-related benefits through their existing group health plan should begin by reviewing their current plan documents to understand their plan’s existing coverage of abortion services, including to what extent their plan provides coverage for travel and lodging expenses related to medical care when a covered service is not available in the area in which the covered person lives.
  • The employer should then contact their TPA (if self-funded) or their carrier (if fully-insured) to confirm whether any additional desired options can be offered and administered.
  • If the TPA or insurance carrier cannot offer expanded coverage under an employer’s group health plan, the employer may consider alternative funding arrangements. See FAQ 5.

Traditional HRA: A common approach is to integrate a fully insured or self/level funded group health plan with a self-funded health reimbursement arrangement (HRA) to reimburse the cost of abortion services and/or for travel and lodging expenses necessary to receive medical care. The same state law risks related to abortion services that apply to an employer’s major medical plan will also apply to HRAs (See FAQs 17-19). In addition, an employer will need to consider how an HRA will impact health savings account eligibility if the employer sponsors a high deductible health plan. HRAs are discussed in more detail in FAQs 11 and 13.

In addition to traditional HRAs, other funding options to provide reimbursement for abortion services and/or travel and lodging are available, most of which could be provided pre-tax, but note the amount would be capped based on limits outlined in IRC Section 213(d). See FAQ 7.

  • Excepted Benefit HRA (EBHRA) – see FAQ 12.
  • FSA – see FAQ 11.
  • HSA – see FAQ 15.
  • EAP – see FAQ 16.
  • After-tax relief fund – see FAQ 21.

Yes, if the abortion is obtained in a jurisdiction where it is legal.  Medical care under Code Section 213(d) includes amounts for transportation primarily for and essential to medical care, and therefore under IRS rules is eligible for reimbursement on a tax-favored basis through a group health plan, HRA, FSA, or HSA.  The medical care itself must be legal for the tax-favored treatment to apply.  Travel for an abortion obtained in a state where the procedure is illegal would not qualify.  See FAQ 19.   

IRS guidance limits non-taxable reimbursement for medical travel as follows:

  • Lodging is capped at $50 per night per person.
  • If traveling by automobile, the medical standard mileage rate is less than the mileage rate for business travel purposes—just 22 cents per mile (as of July 1, 2022).
  • Other modes of travel (train, plane, bus, etc.) are permitted without an express limit, but in all cases, the transportation must be primarily for medical care and not for non-medical purposes.
  • Meals can be reimbursed only if obtained within the hospital (or similar institution) where the procedure is performed.
  • Travel expenses for medically necessary travel companions, such as the parent of a minor child, are also covered under these rules.

The most direct route to reimbursing abortion-related travel expenses for employees is through the employer’s major medical group health plan, but if that group health plan does not/cannot cover the travel expenses, they could still be reimbursed under an FSA, HRA, EBHRA, HSA or possibly an EAP.  See FAQs 11, 12, 13, 15, and 16.

Any reimbursement for abortion-related travel in excess of Code section 213(d) limits is allowed but subject to taxation.  Practically, the answer depends on whether the plan is fully insured or self-insured.

  • Fully insured plans are unlikely to permit reimbursement of travel benefits in excess of IRS limits.
  • Self-insured plans have flexibility to reimburse excess expenses under a group health plan, although excess expenses would be taxable and subject to withholding. In addition, the plan’s third-party claims administrator would need to agree to process reimbursements in excess of IRS limits.  This would also create payroll and administration challenges to account for excess amounts that will be subject to income and employment tax withholding. 

This is possible but requires ensuring that the benefit is provided only to individuals who have coverage under another group health plan.  Otherwise, a stand-alone plan could violate the ACA rules prohibiting annual and lifetime limits and requiring provision of preventive care at no cost.  Also, the considerations discussed below regarding HSAs; reasonable expenses; and ERISA, ACA, HIPAA, and MHPAEA compliance would apply.  A separate group health plan might need to be managed in-house, which would require additional attention to protection of protected health information under HIPAA and separate continuation coverage rights under COBRA. 

Yes, abortion travel can be reimbursed through either an HRA or the Health FSA, subject to the rules governing both types of arrangements/accounts including:

  • Health FSAs are subject to statutory contribution/benefit limits. HRAs have no required limits, but there are almost always limits based on plan design.  
  • An HRA must be integrated with the employer’s major medical plan or qualify as an excepted benefit HRA (EBHRA) or else the HRA may violate ACA rules that prohibit lifetime and annual dollar limits for certain benefits and require coverage of preventive care without cost sharing.
  • HRAs and FSAs can interfere with the ability to contribute to an HSA unless they meet certain additional requirements.
  • If there is an existing HRA or FSA and the plan design covers any Code Section 213(d) expense, then abortion-related travel expenses are likely currently covered. In the case where an HRA or FSA does not cover all Code section 213(d) expenses, a decision needs to be made as to whether reimbursements will be restricted to abortion-related travel or whether other types of medical travel will be included.
  • If medical travel is restricted only to abortion travel, there may be issues under the Mental Health Parity and Addiction Equity Act (MHPAEA). Under MHPAEA, benefits for mental health/substance abuse cannot be more restrictive than benefits for medical/surgical benefits.  This risk could be reduced by expanding the travel benefit to include medical travel for any covered service under the plan, medical travel for covered services that cannot be obtained within a certain geographical radius, or specifically including travel for mental health/substance abuse services in addition to abortion travel.
  • Subject to Code Section 105(h) nondiscrimination rules.
  • Substantiation of the medical services received will be required (see FAQ 13).
  • For employers who want to offer abortion travel benefits to all employees and not just those enrolled in the group health plan, employers may consider offering an EBHRA; however, this type of HRA has additional compliance concerns (see FAQ 12).

EBHRAs are non-integrated HRAs that qualify as excepted benefits under health care reform and have flexibility in that they can be used by employers of any size and can be used by employees not enrolled in the employer’s major medical group health plan.  However, there are several requirements that need to be met:

  • EBHRAs must be available to all similarly situated employees under the same terms and conditions. It is unclear if the benefit is limited to abortion travel (and therefore limited to women) whether this would satisfy the similarly situated requirement.
  • The employer must make other nonexcepted, non-account-based group health plan coverage available to the EBHRA participants for the plan year. The participants do not actually have to enroll in such primary coverage.
  • Dollar limits for EBHRAs are $1,800 for 2022 and $1,950 for 2023.
  • Reimbursements can be made for out-of-pocket 213(d) medical expenses, but there are restrictions (no reimbursement for premiums for individual health coverage, Medicare, or non-COBRA group coverage).
  • EBHRAs are ERISA plans and subject to ERISA requirements including plan document, claims procedure, SPD requirement, and Form 5500 filing.
  • Participants are entitled to COBRA if they lose their EBHRA coverage as the result of a qualifying event.
  • Subject to Code Section 105(h) nondiscrimination rules.
  • Reimbursements require substantiation, so the targeted medical care documentation is needed, which requires HIPAA privacy and security compliance.
  • An employee’s participation can also impact other account-based benefits, like other existing HRAs, and FSAs. EBHRAs can disqualify a person from participating in an HSA because the EBHRA provides a benefit below the high deductible health plan (HDHP) deductible.

To maintain the tax-favored status of an FSA or HRA/EBHRA, expenses need to be properly substantiated.  For medical travel, this means both the cost of the travel itself (e.g., airfare, lodging, mileage) and proof that the travel was for a qualified medical expense.  Even if a participant is not enrolled in the employer’s major medical group health plan, proof of the abortion would still need to be provided to substantiate the claim for the travel portion of the total expense.  Note that this would require additional compliance obligations under HIPAA privacy rules.  Self-substantiation is not acceptable for FSAs and HRAs.  Claims must be substantiated with two items (note that this applies to both the travel expense and the abortion itself):

  1. Information from an independent third party describing the service, the date of the service, and the amount of the expense. This would apply to the travel expense (e.g., a plane ticket, lodging receipt, etc.) as well as the abortion itself to prove that the travel was for a medical expense.
  2. A statement from the participant providing that the medical travel expense has not been reimbursed and that the participant will not seek reimbursement for the expense under any other health plan coverage

Yes. However, first-dollar coverage of travel expenses for abortion would not be possible under a HDHP until the individual satisfies the plan’s annual deductible.  But, an individual covered by a HDHP would be able to withdraw funds from their HSA to reimburse travel expenses to access reproductive coverage, consistent with the IRS limits on eligible travel benefits discussed in FAQ 7.

Yes. Because medical travel is a Code Section 213(d) expense, travel for a legally obtained abortion should be a qualifying medical expense.  Third-party adjudication is not required for distributions from an HSA.  The individual is responsible for maintaining their own records to show that their expenses are qualified medical expenses.  The employer plays no role in substantiating HSA distributions.

Probably yesAn employer can offer travel and lodging benefits under an employee assistance program (EAP) that is an excepted benefit.  Because employers typically provide EAP coverage to all eligible employees without charging a premium, this provides the ability to offer the travel and lodging benefits to all employees, not just those who are enrolled in the employer’s group health plan.  An EAP is an ERISA plan but can qualify as an excepted benefit, and therefore be exempt from certain ACA requirements, if the EAP: (a) doesn’t provide significant benefits in the nature of medical care, (b) is not coordinated with another group health plan, and (c) made available to employees at no cost.  Some other issues for employers to consider:

  • There is very limited guidance on the definition of “significant benefits in the nature of medical care” and if adding abortion related travel to an EAP would tip the balance from insignificant to significant. If medical travel benefits are viewed as significant and not qualify as an excepted benefit, the EAP would be subjected to health care reform mandates like preventive services and no annual limits (which the EAP could not meet).
  • To maintain tax-favored treatment, the medical expense would need to be substantiated, which would consequently require compliance with HIPAA privacy rules.
  • If the travel benefit is restricted to abortion, MHPAEA compliance may be an issue. This risk could be reduced by expanding the travel benefit to include medical travel for any covered service under the plan, or at least including travel for mental health/substance abuse services.
  • It may be difficult to find a vendor that can administer travel and lodging benefits provided through an EAP.
  • Self-insured plans should be able to provide this coverage, assuming that the procedure is performed (or the medication is obtained) in a state where it is legal.
  • Fully insured plans will have a more difficult time providing this coverage because these plans are regulated by state insurance laws. If coverage is not be included in their fully insured group health plan, the employer could consider offering help through other options as explained in FAQ 5.

 

Note:  Some states outlawing abortion either have, or intend to, enact statutes that would assess civil or criminal liability for anyone who “aids or abets” or “assists” a resident of that state with procuring an abortion which could include, theoretically, helping an individual obtain one in a state where abortion is legal.  The constitutionality of these statutes has not been tested yet, but longstanding constitutional law jurisprudence suggests that individual states should not be able to enforce laws penalizing out-of-state conduct.  Nevertheless, it is possible that a state might use these laws to challenge a group health plan or employer that reimburses individuals for the abortion-related costs or related costs for travel to a state where abortion is legal.

This issue is yet to be tested. A state law banning an individual from traveling to another state to receive an abortion may well be unconstitutional, even in light of Dobbs.  Attempting to hold individuals liable for out-of-state abortions raises complicated constitutional questions (including the principles of federalism, state sovereignty, the constitutional right to travel, and the dormant Commerce Clause) and likely would be impermissible.  Justice Kavanaugh in his concurring Dobbs opinion argues that a state may not “bar a resident of that State from traveling to another State to obtain an abortion.”  Note that Justice Kavanaugh did not speak for the Court on this issue, though, because it was in a concurring opinion and not the controlling majority opinion.  ERISA also preempts certain state laws, especially those that attempt to govern self-insured plans such as Health FSAs, HRAs, EBHRAs, and generally EAPs.  If a law is preempted, it means that it cannot be enforced against a plan, so a state would not succeed if the law is preempted.  But an employer would still be subject to potential litigation as preemption generally requires a final court decision.  See also discussion in FAQ 6, pre-tax reimbursements through Section 213(d) for Health FSAs, HRAs, etc. requires the expense to be legal.  

The Kaiser Family Foundation provides information on current state specific abortion laws available here.  Some highlights include:

  • Texas and Oklahoma have enacted laws that authorize civil actions against any person who aids or abets access to abortion care, including through reimbursement for the costs of an abortion. The Texas and Oklahoma laws are the only ones that explicitly classify employer coverage or reimbursement of abortion services banned in those states through insurance or benefit plans as aiding and abetting unlawful abortion.  Both the Texas and Oklahoma laws are being challenged in court.
  • Other states ban/limit abortions but do not explicitly forbid employers from covering abortion or abortion services through employer insurance coverage. There is some risk, however, that state criminal conspiracy and/or aiding and abetting laws may be cited against companies that cover abortion or abortion services, including receipt of abortion medication, within a particular state.
  • On the other hand, some state officials in states where abortion is now or will be illegal or restricted, such as North Carolina and Michigan, have indicated an intent not to enforce their abortion restriction laws.
  • It is unclear whether the states with abortion bans/limitations will look to apply these laws broadly or narrowly, especially when persons who reside in one of those states seek abortion services outside the state’s borders. This is of particular importance for employers considering travel and expense reimbursement policies for employees who need to leave a state to obtain abortion services.  The general presumption against the extraterritorial application of state law coupled with constitutional concerns raised by that application leads against a broad application of these laws, but this issue will likely be the subject of continuing litigation and debate.

Yes.  Abortion care is considered medical care and a plan established by an employer for the purpose of providing medical care will be considered a group health plan and therefore will be subject to ERISA, ACA, HIPAA, and COBRA.  Unless the travel benefit is “integrated” with other coverage it would violate certain ACA provisions including the requirement to provide preventive services at no cost and the prohibition on imposing annual/lifetime dollar limits.  Furthermore, to the extent that employers would be implementing this benefit solely for employees seeking out-of-state abortions, as opposed to having or establishing a policy that pays for travel for a broad array of medical services, it could make it easier for states where abortion is illegal to argue that by establishing a narrow travel expense reimbursement policy, the employer is facilitating access to abortion services in violation of state law.  While it is doubtful that a state would prevail if it brought such a claim against an employer, this nonetheless could require an employer to respond to any actions brought.

Probably yes, but there are some risks.  An employer could offer a taxable reimbursement for any travel or lodging expense incurred by an employee (general relief fund) or, more narrowly, a reimbursement for “wellness” related travel (wellness travel fund).  This benefit could be offered to all employees, not just those who are enrolled in the employer’s group health plan.  Under this approach, employers would require receipts for travel and lodging, but would not request substantiation of an abortion or other wellness expense. 

  • This type of arrangement probably would be more costly for an employer because it is a broader travel benefit. But this approach also may protect the employer from civil or criminal liability under state laws because the employer will not know whether employees are using the benefit to facilitate abortion access.  Employees may be more willing to utilize this benefit if they are fearful of disclosing that they or a covered dependent has had an abortion.
  • While a travel benefit tied directly to abortion care would be considered an ERISA group health plan (see FAQ 20) a more general travel benefit that is less tied to medical care is more likely to not be an ERISA group health plan and subject to the associated compliance requirements.
  • However, if a general travel benefit is structured to not be subject to ERISA, it would not have the benefit of ERISA preemption of state laws and could open the employer to potential state law liability without the ERISA preemption defense. Employers are concerned about potential civil or criminal liability for aiding and abetting abortion access.  ERISA generally preempts state laws that “relate to” an ERISA plan but does not preempt “generally applicable” state criminal laws.  The application of ERISA preemption to state civil laws that restrict abortion is unclear.  Justice Kavanaugh’s concurring opinion in Dobbs indicates that in his view, a state may not bar a resident of that state from traveling to another state to obtain an abortion.  Justice Kavanaugh did not speak for the Court on this issue, though, because it was in a concurring opinion and not the controlling majority opinion.  It is possible that the DOL will issue guidance clarifying the preemptive effect of ERISA in this area.
  • Remember that this would have to be an after-tax benefit meaning that employees would be subject to taxation on the travel benefit they receive.
  • There would be fewer issues related to substantiation of travel expenses and the associated HIPAA/privacy concerns. However, documentation and information provided through the program should still be kept confidential.  Note also that not requiring the substantiation of medical travel expenses is another factor that makes the plan look less like an ERISA group health plan.    
  • This approach alleviates MHPAEA concerns because the reimbursement would not be tied to medical expenses.

Yes.  Employers should review any group health plan documentation and other employee communications to ensure they align with whatever changes in benefits will result from the Dobbs decision.  ERISA requires that plan documentation reflect the benefits available to plan participants, and considering the potential benefit changes, employers should ensure that they provide proper notice of any changes to abortion and travel benefits under their group health plans. 

  • A summary of material modification (SMM) is required anytime there is a material modification in the terms of the plan or any change in the information required to be in the summary plan description (SPD). An SMM must be provided within 210 days after the end of the plan year in which a modification or change is adopted. 
  • A material reduction in covered services or benefits must be disclosed no later than 60 days after the date of adoption of the modification or change.
  • For any mid-year material modification to a group health plan’s terms or coverage not reflected in the most recently provided summary of benefits and coverage (SBC), a notice of material modification must be furnished at least 60 days before the modification becomes effective.

Assuming the fully insured group health plan, as a result of Dobbs, has a significant curtailment of coverage (e.g., abortion no longer covered), potentially yes this could permit a mid-year change depending on the circumstances.  IRS regulations provide a bifurcated analysis for coverage curtailments.  If the curtailment does not result in a loss of coverage, alternative similar coverage can be elected but coverage cannot be dropped.  If the curtailment results in a loss of coverage, alternative similar coverage can be elected or the election can be dropped, but the election can only be dropped if no other option providing similar coverage is offered.  The regulations state that “coverage under a plan is significantly curtailed only if there is an overall reduction in coverage provided under the plan so as to constitute reduced coverage generally.”  A loss of coverage may include a substantial decrease in the medical providers available under the plan option or a reduction in benefits for a specific type of medical condition for which treatment is being received.  Additional guidance from the IRS on this issue would be appreciated. 

CMS Administrator Chiquita Brooks-LaSure provided the following statement on the access to reproductive health care on June 24, 2022.

  • A woman’s right to make decisions about her health is essential. As we review today’s Supreme Court decision, as the Administrator of the Centers for Medicare & Medicaid Services, I will do everything in my authority to ensure that people have the choice of when and how to start a family.
  • Today, more than 150 million people are served by Medicare, Medicaid and CHIP, and the Affordable Care Act, including more than 80 million women and girls. To you I say: CMS will continue working to maintain and expand access to the full range of reproductive health care services across the lifespan—that includes IUDs, emergency contraception, oral contraception, other forms of contraception, and abortion care within our legal authority. It is our fundamental value that reproductive health care is critical to ensuring that everyone can build healthy lives with economic security.

On the same day the Dobbs decision was released, President Biden released a statement condemning the decision and announced steps the Biden Administration would take to protect an individual’s right to seek reproductive care in a state where it is legal. The Biden Administration has also stated that if “governors try to block a woman from traveling from a state that prohibits her from seeking the medical help she needs to a state that provides that care, we will act to protect her bedrock rights.”

On June 27, 2022, the heads of the DOL, HHS, and IRS jointly issued a letter warning health plan sponsors and insurers to make sure their plans comply with the ACA contraceptive coverage mandate to avoid future enforcement actions.

On June 29, 2022 HHS issued guidance in response to Dobbs addressing HIPAA privacy protections around reproductive health care. The guidance addresses how HIPAA protects the privacy of individuals’ protected health information (PHI) relating to abortion and other sexual and reproductive health care, emphasizing that covered entities (health plans, most health care providers, and health care clearinghouses) can use or disclose PHI only as expressly permitted or required by the HIPAA privacy rule.  The guidance focuses on the privacy rule’s provisions for disclosures required by law, for law enforcement purposes, and to avert a serious threat to health or safety.  OCR indicates that, except in the case of a law that expressly compels a covered entity to disclose PHI and is legally enforceable in court, these provisions permit but do not require covered entities to disclose PHI.  Examples are provided of situations that providers may face in states where abortion is restricted or banned.

On July 8, 2022, the White House announced an executive order to defend abortion by:

  • Safeguarding access to reproductive health care services, including abortion and contraception.
  • Protecting the privacy of patients and their access to accurate information.
  • Promoting the safety and security of patients, providers, and clinics.
  • Coordinating the implementation of Federal efforts to protect reproductive rights and access to health care.

On July 12, 2022, U.S. Attorney General Merrick Garland announced a Reproductive Rights Task Force that will monitor all state and local legislation and enforcement actions that threaten to:

  • Infringe on federal legal protections relating to the provision or pursuit of reproductive care.
  • Impair women’s ability to seek reproductive care in states where it is legal.
  • Impair individuals’ ability to inform and counsel each other about the reproductive care that is available in other states.
  • Ban Mifepristone based on disagreement with the FDA’s expert judgment about its safety and efficacy.
  • Impose criminal or civil liability on federal employees who provide reproductive health services in a manner authorized by federal law.

On July 13, 2022, HHS issued guidance (and a news release) specific to retail pharmacies clarifying their obligations to ensure access to comprehensive reproductive health care services.

On July 25, 2022, HHS issued updated proposed regulations (and a news release and fact sheet) under ACA Section 1557. Section 1557 generally prohibits discrimination in certain health programs and activities on the basis of race, color, national origin, sex, age, or disability.  The proposed regulations would clarify that discrimination on the basis of sex includes discrimination on the basis of sex stereotypes, sex characteristics, and pregnancy or related conditions, including pregnancy termination.

On July 28, 2022, the DOL, IRS, and HHS jointly issued FAQs (and a news release) addressing required coverage of contraceptives under the ACA in an effort to bolster access to contraceptives.

  • There currently is no federally protected right to abortion. However, the Pregnancy Discrimination Act (PDA) enacted under Title VII of the Civil Rights Act says that group health plans may, but are not required, to cover abortions–with the following exceptions.  If complications arise during an abortion, such as excessive hemorrhaging, plans are required to pay those costs attributable to such complications.  The plan is not required to pay for the abortion itself, unless the life of the mother would be endangered if the fetus were to be carried to term.  If a plan does elect to cover, it must do so in the same manner and to the same degree as it covers other medical conditions.
  • Since 1977, federal law has banned the use of any federal funds for abortion unless the pregnancy is a result of rape, incest, or if it is determined to endanger the woman’s life. This rule, known as the Hyde Amendment, is not a permanent law; rather it has been attached annually to Congressional appropriations bills and has been approved every year by Congress.  
  • Under the federal Emergency Medical Treatment and Active Labor Act (EMTALA), hospitals must evaluate and appropriately stabilize patients experiencing an emergency medical condition. CMS has taken the position that EMTALA requires hospitals to stabilize a pregnant patient, even if it would result in an abortion.  Although certain state laws have restricted what constitutes an emergency medical situation for pregnant patients, EMTALA may preempt directly conflicting state law and could be used to defend appropriate emergency care provided to a pregnant patient experiencing an emergency medical condition.
  • The Mental Health Parity and Addiction Equity Act (MHPAEA) requires that group health plans offering mental health or substance use disorder (MH/SUD) benefits provide them “in parity” with the medical and surgical benefits covered under the plan. If a plan sponsor chooses to provide travel benefits only for reproductive care and not for MH/SUD services, this could cause compliance problems with the MHPAEA.

This is unclear and will likely need to be resolved through litigation.  Currently, over half of abortions in the US are “medication abortions” induced by ingesting a combination of two drugs. 

  • In December 2021, the FDA eliminated the requirement that patients seeking medication abortions pick up their prescription in person, opening a way for patients to obtain an abortion through telemedicine and ordering the pills through the mail. Employers may want to provide access under a group health plan to mifepristone and misoprostol (the medications that can terminate a pregnancy) via a telehealth visit and delivered by mail.  But there are state laws restricting telemedicine abortion.  The Kaiser Family Foundation has cataloged these state laws.  Litigation is underway to determine if the FDA’s rule preempts state law restrictions on medication abortions.  
  • The Biden Administration appears to be taking the position that the Constitution’s protection of interstate commerce would protect PBMs that ship abortifacient drugs into states that ban abortions.
  • On July 13, 2022, HHS issued guidance and a news release specific to retail pharmacies clarifying their obligations to ensure access to comprehensive reproductive health care services.

Potentially yes.  Termination of a fertilized egg or embryo occurs relatively frequently at the conclusion of in vitro fertilization (IVF) treatment.  This could mean that IVF coverage may no longer be available in a state that outlaws abortion, which, in turn, might require consideration of the same travel benefit analysis described above in the context of reproductive care.  This may also cause complications for individuals who are currently undergoing IVF treatment in a state where the procedure may now be illegal.

  • Abortion is defined in Utah Code Ann. §76-7-301 in relevant part as: “the intentional termination or attempted termination of a human pregnancy after implantation of a fertilized ovum through a medical procedure carried out by a physician or through a substance used under the direction of a physician…”
  • Utah Code Ann. §76-7a-201 (the so-called trigger law) states that an abortion may only be performed if it is necessary to prevent the death or serious and irreversible impairment to the mother, the fetus has a fatal or severe brain abnormality, or because of reported rape or incest. This law has been temporarily blocked from going into effect due to a lawsuit filed by Planned Parenthood. 
  • Unrelated to the trigger law, Utah bans the use of public funds for abortions. Utah Code Ann. §76-7-331 states in subsection (2), “Public funds of the state, its institutions, or its political subdivisions may not be used to pay or otherwise reimburse, either directly or indirectly, any person, agency, or facility for the performance of any induced abortion services unless: . . . ” it’s necessary to save the life of or prevent irreparable damage to a major bodily function of the mother, or is the result of rape or incest. Section 76-7-324 makes it a class B misdemeanor for any public employee that authorizes abortion services outside of Section 331, which carries a maximum sentence of six months incarceration.   Because of the ban on public funds in Section 311, public entities are subject to an additional abortion-related restriction.

The Reproductive Health Equity Act (signed into law on April 4, 2022) codifies the legal right to abortion services in Colorado.  The bill declares that every individual has a fundamental right to use or refuse contraception; every pregnant individual has a fundamental right to continue the pregnancy and give birth or to have an abortion; and a fertilized egg, embryo, or fetus does not have independent or derivative rights under the laws of the state.

Unclear.  Arizona originally banned abortion in 1864, and that law has remained on the books ever since.  The enforcement of the total ban was prevented by an injunction in the 1973 case Nelson v. Planned Parenthood, which based its decision solely on Roe. However, with the Dobbs overturn of Roe, the lifting of the injunction is likely after Arizona Attorney General Mark Brnovich announced on June 29, 2022, his intention to ask courts to do so.  Should the injunction be lifted, abortion will become illegal in Arizona, except to save for the life of the mother.  Senate Bill 1164, which restricts abortion to 15 weeks of gestational age, is set to go into effect in late September 2022–but this would not impact the ban on abortion because Senate Bill 1164 was designed to go into effect only if Roe was not overturned. 

Idaho has a trigger law that will go into effect 30 days after overturn of Roe that criminalizes abortion and states that a person who performs an abortion will face two to five years of imprisonment.  Exceptions to the ban will include saving the life of the mother, as well as lawful evidence that the pregnancy is the result of rape or incest.

Abortion is legal within 24 weeks of fertilization and after 24 weeks if the pregnancy could be fatal for the pregnant woman. See NRS 442.250

Conclusion

There will be more questions that arise for group health plans, and we will be operating with lots of uncertainty for the foreseeable future.  Litigation and future guidance will flesh out the bounds of this post-Roe era.  For now, employers should become educated as much as possible on these complicated issues, have discussions with their benefits consultants and their legal counsel, consider their own risk tolerance, and check with their service providers to see if they can accommodate the employer’s desired plan.  Finally, as with any benefit change, employee communications will need to explain what is changing and any new (or reduced) benefit provided.

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