On June 24, 2022, the Supreme Court issued its opinion in Dobbs v. Jackson Women’s Health Organization. The Dobbs case involves a Mississippi law that would effectively ban most abortions in the state after 15 weeks of pregnancy. Although the law made exceptions for medical emergencies, it did not make exceptions for rape or incest. The lower courts found that the law was inconsistent with both Roe v. Wade and Planned Parenthood v. Casey and kept the state from enforcing it. The state appealed to the Supreme Court. The Court upheld that law, overturning both Roe and Casey in the process.
The decision also returned the right to legislate abortions to the states. Several states have already deemed abortion illegal under state law and several more are likely to do so as a result of this decision. Employers are also left to grapple with how this development affects their group health plans, and how they provide their employees with access to abortion care without violating the law.
Employers with either fully insured or self-insured group health plans will be affected by this case. If the applicable state law is an insurance regulation, fully insured group health plans would be directly subject to such laws. Accordingly, if a state law restricts abortion coverage, a policy issued by a carrier licensed in the state could not provide abortion coverage nor likely reimburse the travel costs for a participant to obtain an abortion in a state permitting the procedure.
By contrast, self-insured plans are not designed to be subject to state insurance laws due to ERISA preemption. However, keep in mind that abortion prohibitions or restrictions that affect group health plans often are not drafted as state insurance laws. Rather, many may be found in the states’ criminal and health and safety codes, and it is anticipated that some states will aggressively enforce such abortion prohibitions. So, employers should engage counsel to navigate the myriad of state laws that may apply. Of course, further state laws are anticipated, so employers will need to work with their counsel to continually monitor abortion-related regulations and enforcement actions in the states within which they operate.
More information concerning benefits compliance in light of this decision can be found in our recent Washington Update »
Dobbs v. Jackson Women’s Health Organization »