new abortion law supreme court

 

Employer Abortion Policy Considerations

 

On June 24, 2022, in Dobbs v. Jackson, the U.S. Supreme Court ruled that the U.S. Constitution does not protect the right to obtain an abortion but also acknowledged the states are free to restrict or prohibit abortions. Employers who sponsor group health plans need to be ready to answer questions about state laws and what their insurance plan may cover if allowed within their state.

State Laws and ERISA Challenges

Employer concerns brought about by the Supreme Court Dobbs’s ruling involve state laws that make having, providing, aiding, and abetting the provision of abortion a criminal offense, as well as state requirements in favor of abortion-related services. Plan sponsors need to work with their employee benefits provider to review plan changes due to state law, potential plan document changes, travel and relocation benefits, and privacy concerns.

States have widely varying laws concerning abortion, including complete bans, bans that apply to a certain time frame after conception, bans with limited exceptions (such as to save the life of the mother), and bans on abortion drugs. In general, state laws that relate to employee benefits plans are preempted by the Employee Retirement Income Security Act of 1974 (ERISA).

ERISA Preemption

ERISA promotes uniformity in benefits administration by, among other things, preempting “any and all State laws insofar as they may now or hereafter relate to” any ERISA benefit plan. The statute’s preemption provision is intended to protect plan sponsors and fiduciaries from operating under a myriad of potentially conflicting state and local regulations on benefits administration.

However, ERISA typically does not preempt state criminal laws. Employers may need to evaluate the risk of potential criminal liability if their plans cover abortion-related services in states where they are banned or restricted. It is also important for employers to contact their insurers and find out what type of abortion-related drugs they cover. In states where abortion is illegal, it is vital that employers find out if their insurers will approve abortion medications through mail-order pharmacies.

Summary Plan Descriptions (SPDs)

Employers need to analyze all states in which their employees reside, and changes may entail updates to their Summary Plan Descriptions (“SPDs”).

The Pregnancy Discrimination Act (PDA)

Subject to state law, some group health plans include coverage for abortion. According to The Pregnancy Discrimination Act (PDA), employer medical plans must cover expenses for pregnancy-related conditions as they would other medical conditions.  However, the PDA specifies that insurance coverage for expenses arising from abortion is not required unless the life of the mother is endangered by the abortion.

The Mental Health Parity Act (MHPAEA)

The Mental Health Parity Act (MHPAEA) generally restricts plans from applying annual limits, financial requirements, and treatment limitations to mental health and substance use disorders that are not applied to other healthcare conditions. Therefore, employers must carefully consider whether any plan changes could implicate the MHPAEA.

Emergency Medical Treatment and Active Labor Act (EMTALA)

On Friday, July 8, 2022, President Biden signed an Executive Order that directs federal agencies to extend federal protections for abortions. Concurrently, the Centers for Medicare & Medicaid Services (CMS) released an updated guidance memorandum reinforcing Emergency Medical Treatment and Active Labor Act (“EMTALA”) requirements in hospitals. On Monday, July 11, 2022, the secretary of the Department of Health and Human Services (HHS) issued a letter to healthcare providers regarding EMTALA, indicating that when state law prohibits abortion and does not provide an exception that aligns with EMTALA’s emergency medical condition definition, that state law is preempted.

Travel Expense Reimbursements

Some employers already provide some type of travel benefit for employees who are seeking medical services while others have a generic travel benefit that may, in some cases, cover costs related to abortion services that might not be available in the employee’s state. Other employers have announced that their policies allow for maternity travel benefits, which is specific to abortion services. Each of these methods has its own compliance challenges. If an employer decides to provide medical travel reimbursements, policy or program language that is neutral as to eligibility (not just women) and medical services covered (not just abortion) may be an option. Employers may also consider establishing a geographic limit, such as a limit of a 150-mile travel limit.

Health Reimbursement Arrangement (HRA)

It may be possible for your company to fund healthcare-related travel costs (pre-tax) through a health reimbursement arrangement (“HRA”). Employers with high deductible health plans should be mindful that before their HRA can pay for abortion services, the participant must first meet the minimum deductible to be eligible.

Employee Assistance Plan (EAP)

An employee assistance plan (EAP) is an employee benefits program provided by a company to assist employees with well-being and mental wellness support. EAPs are not subject to the Affordable Care Act to the extent that they do not offer significant benefits in medical care or treatment. The extent to which an EAP could offer travel benefits that relate to medical care or treatment is unclear based on existing guidance.

Affordable Care Act (ACA)

From an Affordable Care Act (ACA) and ERISA compliance standpoint, simply providing taxable reimbursements to employees for travel expenses may be the most straightforward approach. One downside to this arrangement is that it creates tax-related friction for both the employee and employer. More importantly, though, taxable arrangements would not be subject to ERISA. This means that there wouldn’t be a preemption argument for an employer if/when faced with state law abortion restrictions.

Relocation Benefits

If an employee chooses to relocate to a different state because of the impact of state abortion laws, an employer can choose to offer relocation benefits.

Health Insurance Portability and Accountability Act (HIPAA) Privacy Concerns

The Health Insurance Portability and Accountability Act (HIPAA) applies to group health plans and prohibits, among other things, the unauthorized disclosure of employee-protected health information (“PHI”). HIPAA do not apply to the employer. If abortion-related services are made available to employees outside of a group health plan, employers could conceivably be required to release information related to their abortion policy and the employees that have used these benefits. Employers who want to offer such benefits might consider working with a third-party claims administrator to handle the claims process.

Federal Regulatory Changes

Employers need to be aware of any changes in legislation that President Biden’s administration could implement. President Biden announced that the administration will start by looking into what is happening at the federal and state levels. Employers may want to take the time to familiarize themselves with new state laws to be better prepared to answer employee questions pertaining to whether their benefits policies will change due to the Supreme Court Decision.

A link to an informative Employer Q & A can be found here.  

Current as of: 11/28/2022
Abortion Laws by State
State Status Ban Status Exception s to Limit Gestational Term Limit Waiting Period Pharmaceutical Telemed/Ban Laws Against Aiding Laws Regarding Travel for Abortion Insurance Coverage Additional/Pending Info
Alabama Prohibited In effect Threat to life or physical health Conception 48 hours Prohibited None None Medicaid is limited to life endangerment, rape, and Incest Huntsville city passed a resolution indicating doctors and patients will not be actively charged for participating in procedures.
Alaska Not restricted N/A N/A None None N/A None None No restrictions
Arizona Restricted On pause until 2023 Threat to life 15 Weeks 24 hours Prohibited Yes None Medicaid program does not pay for medically necessary abortions; private insurance limited In flux due to numerous conflicting laws and multiple interpretations by judges.
Arkansas Prohibited In effect Threat to life or physical health Conception 72 hours Prohibited None None Medicaid is limited  to Life Endangerment, Rape and Incest; no private insurance restrictions
California Restricted N/A Threat to life or physical health Viability 24-26 weeks None None None State law ensures providers and patients are protected from out-of-state bans; State law prohibits cooperation with out-of-state investigations in to those who seek or provide abortions within their state. Sate law protects providers and patients from law suites and prosecution for financially aiding in obtaining an abortion or traveling to obtain the procedure. Sate law protects providers and patients from law suites and prosecution for financially aiding in obtaining an abortion or traveling to obtain the procedure. No restrictions Recent law limits how California-based entities can disclose data relating to researching, seeking, and obtaining abortion services including electronic communications, searches, and personal medical tracking apps. SB523 Contraceptive Equity Act of 2022 serves as an amendment to California Fair Employment and Housing Act and prohibits employers from making employment decisions or taking discriminatory action against an applicant or employee based on their reproductive health decision-making. AB2091 prevents employers from releasing medical information that would identify an individual or information that is related to seeking/obtaining abortion services in response to a subpoena or law enforcement request with the intent to punish the patient or practitioner.
Colorado Not restricted N/A N/A None None N/A None Executive order to protect patients and providers from out-of-sate abortion bans and to prohibiting cooperation with out-of-state investigations. Medicaid funding is limited to the threat of life, rape, or incest; no private insurance restrictions
Connecticut Restricted N/A Threat to life or physical health Viability 24 weeks None None None Per state law - patient and provider protection from out-of-state bans, will resist any attempt by another state to criminalize or intrude on a woman's healthcare decisions Medicaid covered for medical necessity; no private insurance restrictions
Delaware Restricted N/A Threat to life or physical health; Fetal abnormalities Viability 24 weeks None None None Bill signed - Patient and provider protection from out-of-state bans Medicaid funding is limited to the threat of life, rape, or incest; no private insurance restrictions; no private insurance restrictions
D.C Not restricted N/A N/A None None N/A None None Medicaid funding is limited to the threat of life, rape, or incest; no private insurance restrictions
Florida Restricted In effect Threat to life or physical health; Fetal abnormalities 15 Weeks 24 hours Prohibited None None Medicaid funding is limited to the threat of life, rape, or incest; no private insurance restrictions
Georgia Restricted In effect Threat to life or physical health; Fetal abnormalities 6 weeks 24 hours Prohibited for GA practitioner, Telehealth allowed, Pharmacist can decline to fill RX, can fill by mail None None Medicaid funding is limited to the threat of life, rape, or incest; no private insurance restrictions Atlanta passed resolution to prevent municipal funds from being used to record or track abortions, prohibit sharing information with any government agency, and to make investigating abortions the lowest priority.
Hawaii Restricted N/A Threat to life or health Viability 24-26 weeks None None None None Medicaid covered for medical necessity; no private insurance restrictions
Idaho Prohibited In effect Threat to life Conception 24 hours Prohibited None None Medicaid funding is limited to the threat of life, rape, or incest; private coverage limited Federal court granted a preliminary injunction restraining Idaho from enforcing law in situations where an abortion is a necessary stabilizing treatment for an emergency medical condition
Illinois Restricted N/A Threat to life or health, rape, or incest 24 weeks (10 weeks once ban is in effect) None None None None Medicaid covered for medical necessity; no private insurance restrictions
Indiana Restricted Ban blocked Threat to life or physical health, rape, or incest (up to 10 weeks if ban goes in to effect); Fetal abnormalities (up to 24 weeks if ban goes in to effect); 20 weeks (Conception if ban goes in to effect) 18 hours Prohibited None None Medicaid funding is limited to the threat of life, rape, or incest; private coverage through employers is prohibited.
Iowa Restricted N/A Threat to life or health 20 weeks 24 hours Prohibited None None Medicaid funding is limited to the threat of life, rape, or incest; no private insurance restrictions
Kansas Restricted N/A Threat to life or health 20 weeks 24 hours Prohibited None None Medicaid funding is limited to the threat of life, rape, or incest; private coverage limited
Kentucky Restricted In effect Threat to life or health 6 weeks 24 hours Prohibited None None Medicaid funding is limited to the threat of life, rape, or incest; private coverage limited
Louisiana Prohibited In effect Threat to life or physical health; Fetal abnormalities Conception 24 Hours Prohibited None None Medicaid funding is limited to the threat of life, rape, or incest; no private insurance restrictions New Orleans PD will not enforce abortion bans New Orleans city council stated abortion related investigations to be low priority More litigation pending regarding three different proposed bans
Maine Restricted N/A Threat to life or health 24 weeks None None None Executive order prohibiting cooperation with out-of-state investigations in to those who seek or provide abortions within their state. Covered for medical necessity; no private insurance restrictions
Maryland Restricted N/A Threat to life or physical health; Fetal abnormalities 24 weeks None None None Executive order prohibiting cooperation with out-of-state investigations in to those who seek or provide abortions within their state. Covered for medical necessity; no private insurance restrictions
Massachusetts Restricted N/A Threat to life or physical health; lethal fetal abnormalities 24 weeks None None None State law prohibits cooperation with out-of-state investigations into those who seek or provide abortions within their state and providing protectins to patients and their providers. Insurers are required to cover costs of abortions. Law passed to allow Massachuessetes Telehealth providers to provide reproductive services to out-of-state patients, including prescription writing privileges. This law includes protection from persecution under a more restrictive state's laws.
Michigan Restricted Ban blocked Threat to life Viability 24-26 weeks 24 hours Prohibited None Executive order prohibiting extradition of patients or providers. Medicaid funding is limited to the threat of life, rape, or incest; private coverage limited
Minnesota Restricted N/A Threat to life or physical health; fetal abnormalities 24 weeks 24 Hours None None Patient protected from out-of-state bans; Executive order prohibiting cooperation with out-of-state investigations in to those who seek or provide abortions within their state. Covered for medical necessity; no private insurance restrictions
Mississippi Prohibited In effect Threat to life or physical health, rape, fetal abnormalities Conception 24 hours Prohibited None None Medicaid funding is limited to the threat of life, rape, fetal abnormality, or incest; no private insurance restrictions
Missouri Prohibited In effect Threat to life or health Conception 72 Hours Ban on abortifacients overturned None None Medicaid funding is limited to the threat of life, rape, or incest; private coverage limited
Montana Restricted Ban blocked Threat to life or physical health 24 weeks None None None None Covered for medical necessity; no private insurance restrictions
Nebraska Restricted N/A Threat to life 20 weeks 24 hours Yes None None Medicaid funding is limited to the threat of life, rape, or incest; private coverage limited
Nevada Restricted N/A Threat to life, rape, or incest 24 weeks None None None Executive order prohibiting cooperation with out-of-state investigations into those who seek or provide abortions within their state. Medicaid funding is limited to the threat of life, rape, or incest; no private insurance restrictions
New Hampshire Restricted N/A Threat to life, rape, or incest 24 weeks None None None None Medicaid funding is limited to the threat of life, rape, or incest; no private insurance restrictions
New Jersey Not restricted N/A N/A None None None None Bills signed - Patient and provider protection from out-of-state bans, will not extradite individuals involved in reproductive health care services should they face charges for this practice in another state. Medicaid covered for medical necessity; no private insurance restrictions
New Mexico Not restricted N/A N/A None None None None Executive order prohibiting cooperation with out-of-state investigations into those who seek or provide abortions within their state. Medicaid covered for medical necessity; no private insurance restrictions
New York Restricted N/A Threat to life, health, or fetal abnormality 24 weeks None None None None Medicaid covered for medical necessity; no private insurance restrictions NYC Abortion Rights Act Signed which allows New York City to expand access for residents and out-of-state patients, prohibits city funds or time from being spent on another's state investigation in abortion cases, private persons can bring a claim to those who interfere with arranging or receiving medical care for reproductive health, and reduces or eliinates cost for medically necessary abortifacients.
North Carolina Restricted N/A Threat to life or health 20 weeks 72 hours Yes None Executive order to protect patients and providers from out-of-state abortion bans Medicaid funding is limited to the threat of life, rape, or incest; no private insurance restrictions Executive order signed stating cabinet agencies cannot require a pregnant worker to travel to a state with restricted access to abortion
North Dakota Restricted Ban blocked Threat to life or health, rape, and incest 20 weeks 24 hours Yes None None Medicaid funding is limited to the threat of life, rape, or incest; private coverage limited
Ohio Restricted Ban blocked Threat to life or health 20 weeks (6 weeks once ban goes in to effect) 24 hours Yes None None Medicaid funding is limited to the threat of life, rape, or incest; no private insurance restrictions
Oklahoma Prohibited In effect Threat to life or health, rape, incest Conception 72 hours Prohibited Yes None Medicaid funding is limited to the threat of life, rape, or incest; private coverage through employers is prohibited. Employer cost coverage or reimbursement is considered aiding and abetting. Attorney General Memorandum inidcating district attorneys and law enforcement agencies should not prosecute pregnant women for seeking / obtaining an abortions or abortions services related to unintentional miscarriages, miscarriage management, or ectopic pregnancy. The memo indicates in vitro fertilization treatments and prescription of contraception, including Plan B, are not prohibited by Oklahoma law.
Oregon Not restricted N/A N/A None None None None Statement - state will refuse non-fugitive extradition for criminal prosecutions around abortion but will stop short of issuing an executive order Medicaid covered for medical necessity; no private insurance restrictions
Pennsylvania Restricted N/A Threat to life or health 24 weeks 24 hours None None Executive order to protect patients and providers from out-of-sate abortion bans Medicaid funding is limited to the threat of life, rape, or incest; no private insurance restrictions An executive order was signed to protect abortion and other reproductive rights including contraception to residents and out-of-state visitors.
Puerto Rico Restricted N/A Threat to life, physical or mental health, and socio-emotional well being 22 Weeks Information not available Information not available Information not available Information not available Information not available
Rhode Island Restricted N/A Threat to life or health Viability 24-26 weeks None None None Executive order prohibiting cooperation with out-of-state investigations into those who seek or provide abortions within their state. Medicaid funding is limited to the threat of life, rape, or incest; no private insurance restrictions
South Carolina Restricted Blocked Threat to life, health, rape, incest, or fetal abnormality 20 weeks 24 hours Yes None None Medicaid funding is limited to the threat of life, rape, or incest; no private insurance restrictions
South Dakota Prohibited In effect Threat to life Conception 72 hours Prohibited None None Medicaid funding is limited to the threat of life; no private insurance restrictions
Tennessee Prohibited In effect Threat to life or health Conception 48 hours Prohibited None None Medicaid funding is limited to the threat of life, rape, or incest; no private insurance restrictions Nashville PD statement - will not enforce abortion ban Nashville city council deemed any abortion related investigation as low priority
Texas Prohibited In effect