As anticipated based on the legal brief leaked in April, the Supreme Court, in Dobbs v. Jackson Women’s Health, overturned Roe v. Wade in a 6-3 decision released this morning. This leaves some employers wondering what it means for their group health plans. The result of the case returns the issue of abortion rights to each state, which means that health plan coverage implications may be different depending on the location of the employer, the location of a participant at the time of service, and funding of the plan.
Coverage is not an essential health benefit under the ACA and is not required at the federal level. Therefore, the health plan coverage impact is different depending on the funding of the plan. It is anticipated that this will be an evolving area of law and following is what we currently understand (It should be noted that this does not affect mandated birth control under the women’s preventive care mandates unless religious exemption applies).
Fully-Insured Plans
Up until this point, fully-insured plan sponsors have had discretion to determine whether or not to provide coverage of abortive services under their group health plans. Because the legality of the procedure will be determined under state law, the corresponding ability to provide coverage under a fully-insured group health plan is determined by the laws of the state where the policy is issued. Accordingly, coverage for abortive services under group health plans going forward will be:
- Illegal in some states,
- Restricted in certain states, and
- Legal in others.
There are a number of states that already have laws in place that make abortion illegal (in preparation for an overturn of Roe v. Wade) and other states which already prohibit health plan coverage of abortions. For example, coverage will be restricted in Ohio and Indiana, legal in Illinois, and illegal in Kentucky with limited exceptions (for example, when the life of the pregnant individual is threatened).
Self-Funded Plans
In contrast, self-funded health plans may have more flexibility to determine what coverage (if any) is provided in locations where the procedure is legal. First, there is no federal requirement or prohibition to providing coverage for abortive services under group health plans giving self-funded plans the choice to exclude or provide coverage. Additionally, ERISA preempts state law to the extent those laws impact employee benefit plans.
Conclusion
Our goal as your consultant is to provide perspective and understanding of the impact of the High Court’s decision as it relates to your group health plans.
Please reach out to your HORAN representative with additional questions at 800.544.8306.
The information contained in this document is informational only and is not intended as, nor should it be construed as, legal or accounting advice. Neither HORAN nor its consultants provide legal, tax nor accounting advice of any kind. We make no legal representation, nor do we take legal responsibility of any kind regarding regulatory compliance. Please consult your counsel for a definitive interpretation of current statute and regulation and their impact on you and your organization.
