States are moving to establish abortion laws in the wake of SCOTUS’ Dobbs v. Jackson Women’s Health Organization decision, which overturned the previous federal precedent set under Roe v. Wade. Some states are banning or restricting abortion access while others are moving to protect those seeking and providing abortions from legal ramifications. This evolving situation presents challenges to higher education institutions, with implications for student health programs, employee benefits, management liability, and risk management overall.
While legal wranglings will keep shifting the landscape, it is not too early to identify and consider the issues that are already arising.
Students, faculty, and staff are experiencing undue stress caused by old, incorrect, or changing information about states’ decisions and associated legalities. To help them, risk managers should consider establishing a stakeholder task force that includes students, faculty, and staff to discuss the implications and appropriate actions.
From there, higher ed institutions can share current and evolving legal and insurance information with their constituents. They can also communicate their overall position and how they are supporting students, while staying within the law. At the least, they can be clear on which services are and are not available. For instance, is the Plan B pill available, and how? Colleges and universities may share how to access services. They can also direct constituents to credible information sources.
While it is too soon to see litigation against universities and colleges, the complexity of this situation could well head in that direction. What if a college is in a state that allows abortion, but the university or college does not support abortion access? This could be grounds for a discrimination claim.
Conversely, institutions that want to provide resources for abortion access could be in a difficult spot if the state bans abortions. Some states are working actively to make any employer who “aids and abets” an employee’s access to abortion services in another state a criminal matter. Meanwhile, states that allow abortions are aiming to push back with shield laws to protect abortion providers for out-of-state patients.
There is also the issue of full disclosure of healthcare plans and features under ERISA. Providers and employers need to be clear in their language to avoid confusion that could result in legal claims.
With so many moving parts, colleges and universities should fully understand the potential for litigation and prepare by enhancing their management liability coverage. In addition to Roe v. Wade response litigation, discrimination claims related to Title IX and sexual harassment are increasing in frequency. So-called social inflation, a term describing recent trends in historically high jury awards, is also dramatically increasing claims and defense costs.
Higher ed institutions should assess their overall tower of management liability policies to determine whether they are properly protected, paying close attention to employment practices liability insurance (EPLI) and fiduciary lines. As the law continues to evolve in this area, Risk Strategies experts will continue to monitor federal and state legal developments and implications on EPLI coverage which may impact underwriting analysis with regard to potential sub-limits, increases in premiums and/or retentions.
Insurance carriers are filing in as many states as they can to allow for travel and lodging for those going to states that provide legal abortion access. Yet even if a higher education institution wants to offer this benefit as part of a fully insured plan, can it do so legally if the state says it is not? This opens another potential discriminatory lawsuit arena. Student health centers nationwide have been flooded by a demand for behavioral health services. The Dobbs decision has only exacerbated the need by impacting the emotional health of students, increasing stress levels. Colleges and universities should anticipate these needs and enhance resources accordingly.
Amid the uncertainty, colleges and universities must be vigilant about checking on evolving developments and adjusting strategies as they learn more. The process starts with identifying potential risks on the horizon. The next steps are to analyze and then control the risk as it becomes more certain. What can higher ed leaders do in the meantime?
In addition to collaborating with stakeholders to gain their perspectives and shape decisions, risk managers should also look at insurance limits to see if they are adequate to address potential concerns. The purchase cost for management liability has come down as the market has softened, making this a reasonable approach. Consultative brokers can help risk managers secure proper coverage that provides protection as this nuanced situation continues to shift.
In the months ahead, it is critical to keep abreast of the mounting legal maneuvering between states restricting or permitting abortion access
We are conducting a pulse survey of higher ed institutions to understand what effect the Dobbs decision is having on their campuses, what leadership is thinking, and any actions they may be taking. We will share those results in an upcoming blog. Meanwhile, we are keeping a close eye on developments and are here to assist. We understand the risk implications are not just about the students, faculty, and staff, but also the very mission and values of every higher ed institution.
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Connect with the Risk Strategies Education team at highereducation@risk-strategies.com.