Amendments to the Abortion Act raise questions about health coverage

May 2, 2022, Draft Opinion on the U.S. Supreme Court Dobbs v. Jackson Women’s Health it was leaked to the press and as a result is expected to be overturned by the Court Roe v. Wade and Planned Parenthood v. Casey, effectively leaving the issue of abortion rights in the hands of states. Currently, thirteen states have laws in their state that will automatically ban at least some types of abortion if Roe v. Wade it is overturned, and it is expected that thirteen or more additional states will follow suit.[1]

Employers across the country are considering the impact of the planned decision on employee benefit plans, and some state employers have publicly announced plans to provide travel benefits to cover the costs of workers traveling to state borders and other plan participants. it is necessary to receive a legal abortion. Below are some of the issues that employers may consider regarding the coverage of abortion services under their plans.

Do employers need to cover abortion?

No. There is no law requiring employer-sponsored health plan plans to cover abortion services, but many now do. Abortion is not an “essential health benefit” as defined by the Affordable Care Act, so under the current law, employers who support fully insured plans also have a wide choice to cover it. However, since Dobbs the case has been in the spotlight as to whether certain groups of employees, shareholders and other actors have encouraged employers to provide access to abortion services for employer-sponsored health plans.

Will Group Health Plans still be approved to cover abortions?

According to. if Dobbs opinion transfers the regulation of abortion rights and services to states, fully insured plans must comply with applicable state law, and abortion may not be covered where prohibited by law. Self-insured plans are generally not subject to state insurance laws, but in general are Subject to state criminal law and other similar laws. In some cases, ERISA violates state law to the extent that it relates to employee benefit plans.[2] So if so Dobbs as the opinion transfers the power to outlaw or regulate abortion services and rights to states as expected, employers seeking to continue to pay abortion costs under employer-sponsored health plans should carefully consider the full range of potential consequences and consult with legal counsel. There are opportunities for fully insured plans and self-insured employers to protect participants ’options, but employers should consider all aspects of support and the laws that affect them.

What are the legal issues that employers should consider?

In addition to the potential state criminal law for abortion (if applicable), employers should consider a number of other issues related to providing abortion coverage.

Reflections on the Group Health Plan

Most employers aim to provide tax-free benefits to employees and other participants in their group health plans. The benefits of a group health plan are tax-free if they are for the health care of a federal or employee-dependent federal taxpayer under Article 213, the meaning of the Internal Revenue Code. they must be legal (Thus, they may be medically required to be licensed under state criminal law). Trips for access to abortion services are medical care if the trip is primarily for a legitimate abortion provider. Under the code, the travel benefit can be claimed tax-free, up to a specified dollar limit and subject to certain conditions. To the extent that the benefit is provided above the tax-free limit, the benefit must be attributed to the employee as income.

If an employer provides travel benefits outside Under his group health plan, the employer may inadvertently create another health plan that will cause a number of compliance issues (Affordable Care Act (ACA) market reforms, ERISA reports, COBRA follow-up rights, HIPAA privacy requirements, etc.) . As a result, we generally do not recommend that employers offer travel benefits for medical care outside of their group health plan.

Mental Health Equality Questions

Employers should also consider whether increasing travel benefits for abortion services could violate the Mental Health Equality and Addiction Equality Act by providing more beneficial medical / surgical benefits for mental health and substance use disorders. In our view, the Department of Labor (DOL) has not previously examined travel benefits for parity. If the DOL calls for parity for the benefits of travel, employers have a variety of defenses available to them, including the argument that the benefit is necessary to resolve state legal issues, not the non-qualitative limitation of treatment that violates parity. More DOL guidelines on this topic are welcome.

Health Savings Account Rules / FSA Considerations

Participants in a high-deductible health plan must meet plan deductions before the plan pays for certain benefits. These include most of the travel benefits. Plan sponsors must ensure that this requirement is met if they offer enhanced travel benefits for abortion or to cover travel for other services. In some cases, this will limit the ability of some participants to use the travel benefit. Travel expenses can also be refunded from a tax-free health savings account or a flexible spending account.

Provision of Abortion Restrictions by State Law

Changing a group health plan to provide participants with travel benefits to allow them to receive abortions outside the state is illegal, which could put employers and their employees at potential risk under state law. Providing a comprehensive travel benefit not specifically intended for travel for abortion services can help alleviate that risk. Of course, extending the travel benefit beyond abortion services will also increase its potential cost, so employers will need to consider the financial impact of any amendments.

Another consideration is the coverage of medications that can terminate a pregnancy, such as mifepristone and misoprostol, which can be ordered via a telehealth visit and mailed. However, there is some doubt that a group plan that provides pharmaceutical benefits under state law may prevent you from covering the cost of these drugs, especially if you mail it to a participant in a state with restrictive abortion laws.

Ultimately, the employer should carefully review the applicable state laws and consult with the advisor to ensure that his or her plan provides the desired benefits and complies with all applicable laws.

Actions to be taken immediately

Depending on the employer’s intent on abortion services, the employer may need to act immediately to provide uninterrupted coverage. For example, if an employer-sponsored plan currently provides coverage for abortion services and the employer does not want participants to have coverage gaps in any jurisdiction, the employer may need to add an effective travel benefit to their plan. immediately at the ceremony Roe deer it flips. Please note that the employer may report this change before the plan promoter approves an amendment (however, the change should be formally approved at the end of the plan year so that it can have a retroactive effect on the plan’s adoption year).


The treatment of abortion services coverage under employer-sponsored group plans (especially for multi-state employers) is uncertain at this time and will likely continue to be so for some time to be released. Dobbs opinion. Employers who want to take action to change the law should exercise caution and remain flexible as state laws, legal challenges, and potential legal and regulatory responses arise.


[1] See how 13 states ban abortion — Here’s what happens when the needle is flipped | Guttmacher Institute

[2] See our article on the prevention of certain ERISA state laws.

Jackson Lewis PC © 2022National Law Review, Volume XII, No. 165

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