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The speculation is now over as the Supreme Court released its decision on Friday, June 24, 2022 in the Dobbs v. Jackson Women’s Health Organization case (“Dobbs decision”) overturning Roe v. Wade and Planned Parenthood v. Casey, precedents that established and maintained a federal constitutional right to abortion. The Dobbs decision did not render abortion illegal nationwide. Rather, the decision removed the federal constitutional protection of abortion access across the country and provided states the ability to enact laws regulating abortion.
Even though the Dobbs decision itself does not directly address employer-sponsored group health plans, state abortion laws will directly affect group health plans. While it is too early to determine the nature and significance of the impact the Dobbs decision will have on abortion-related coverage and services for group health plans across the country, we can briefly summarize a few salient points in connection with this topic. We will continue to closely follow the shifting national landscape of abortion access (26 states are certain or likely to ban abortion), particularly around ERISA preemption and potential state criminal liability in the context of insurance coverage.
Many employers currently cover abortion-related services under their group health plans. Still others may be interested in offering a travel assistance benefit for employees to receive an abortion out-of-state, joining the ranks of a growing list of U.S. companies currently offering this travel benefit. While this travel benefit may vary in terms of scope and types of care, many group health plans already reimburse travel and lodging expenses for plan participants based on limitations of provider availability in certain geographic areas and to receive care at a center of excellence. Adding abortion access to a current group health plan travel benefit is becoming more commonplace. While there are currently more questions than answers, we have outlined a few considerations and compliance concerns below with respect to offering abortion-related services under an employer-sponsored group health plan, including a travel benefit:
In a related noteworthy development, the White House recently announced two specific actions to protect abortion access on a national basis:
Moreover, HHS released recent guidance detailing when protected health information (PHI) under HIPAA (Health Insurance Portability and Accountability Act of 1996) is required and not required to be disclosed in connection with reproductive health care, including abortion care, by covered entities when “required by law.” The guidance clarifies that HIPAA rules reinforce efforts to keep individuals’ reproductive health information private and underscores that health care providers may only disclose PHI to law enforcement authorities when it is “required by law” pursuant to the HIPAA rules definition. Although this recent guidance is practically more relevant to medical providers and facilities as HIPAA covered entities, employer-sponsored self-funded group health plans are considered covered entities under HIPAA as well and are advised to take note.
It appears the Dobbs decision is effective immediately. This means employers do not have the luxury of waiting until the beginning of the next plan year to consider any changes to their health plans and should begin now to consider the impact on their plans. Employers are strongly encouraged to consult with their employee benefits and employment counsel regarding the legal implications of abortion coverage within their group health plans and within the general employment relationship. Employers should also consult with their health plan carriers and third-party administrators regarding the logistical and practical plan changes that will likely occur as states enact laws regulating abortion coverage and services.
Risk Strategies will continue to closely monitor the rapidly evolving developments in both state and federal law and litigation activity in this space.