Big companies that fund their employees’ health care are contacting their attorneys about how to continue abortion coverage if the U.S. Supreme Court overturns Roe v. Wade, as noted in a leaked draft notice.
“As attorneys, we are receiving unprecedented interest from clients seeking ways to pursue abortion coverage,” said Sarah Raaii, senior partner in the Chicago office of McDermott Will & Emery LLP, in an interview.
“An overturning of Roe v. Wade would create a serious challenge for employers wishing to provide abortion coverage to employees and their families,” she said.
If the High Court overturns the landmark 1973 ruling, large employers who operate self-funded health plans under the Employees Retirement Income Security Act (ERISA) could add provisions for beneficiaries in states that restrict the procedure for traveling to other states to obtain abortion services. Most self-funded plans currently have no such provisions, ERISA lawyers say
Some companies, such as Citigroup and Amazon, have taken steps to help workers access abortion services.
The Guttmacher Institute, which studies sexual and reproductive health and rights around the world, says 26 states “are certain or likely” to ban abortion without Roe.
There could be “a cascading effect,” with more states implementing restrictions, said Jamila Taylor, director of health care reform and senior fellow at the Century Foundation, a progressive think tank, in an interview. For example, Oklahoma Governor Kevin Stitt (right) on Tuesday signed a bill modeled after a Texas law (SB 8) that bans abortion after six weeks of pregnancy and allows private parties to sue for damages.
“Continuity of care”
“Virtually every major medical plan covers some form of pregnancy termination,” said James Gelfand, executive vice president of public affairs for the ERISA industry committee, which represents the big companies that sponsor benefit plans. employees, in an e-mail.
“If Roe is canceled and some states ban these services, it is likely that many group health plans will seek to implement continuity of care, either through travel benefits or increased use of telehealth associated with mail-order pharmacies or by other means.
There has been “a limited degree of this as a result of Texas law,” Gelfand said. “While none of the state laws have so far attempted to change the terms of ERISA plans, they would certainly affect benefit design,” he said.
What companies can do depends on the type of health plan they sponsor for their employees. If they assume the financial risk associated with the health of their employees by paying for care, as most large employers do, these benefits are subject to ERISA and are not governed by the insurance laws of the United States. State.
ERISA does not limit abortion coverage, and states do not regulate ERISA plans.
ERISA plans covered 64% of American workers in 2021, according to consumer data firm Statista.
Most health plans do not cover travel expenses. If they do, it’s usually at medical centers of excellence that provide high-value services, Roberta Casper Watson, partner at The Wagner Group’s office in Tampa, Fla., said in an interview.
Employers with self-funding plans could change their coverage allowances midway through a plan year to allow for travel expenses and coverage for out-of-network abortion providers as long as employee premiums don’t change, Watson said. Employers must notify workers of benefit changes and wait for a new plan year to change premiums.
Travel funding could be part of a group health plan, but employers are more likely to turn to medical expense accounts, such as flexible spending accounts or health expense reimbursement accounts, to cover travel expenses, Dannae Delano, partner of The Wagner Group’s St. Louis office, said in an interview.
“Travel to receive medical services is considered a medical expense, so it could be spent on something like that,” Delano said. These types of taxed accounts are generally funded by employee contributions and employers can also contribute.
Raaii said there would likely be additional administrative burdens related to travel reimbursement. “Just following the patchwork of state law” would be difficult, she said.
Vulnerability to lawsuits
Employers who provide travel costs for abortion could violate state laws like the Texas law that allows citizens to sue providers for abortions performed after about six weeks of fetal heart activity, said Raai.
“If a state wants to interpret this very broadly – and it seems some of them have indicated that they do – to really punish anyone involved, even peripherally, in the provision of abortions in the states , employers could potentially be at risk.”
Employers who do not offer self-funded plans should be aware of changes in state abortion laws because their health plans are covered by state insurance laws rather than ERISA. These employers offer health benefits in which they pay a premium and an insurance company bears the financial risk of employee health claims. These are called “fully insured” plans.
States can regulate “how fully insured plans in their state cover abortion,” Taylor said.
Eleven states have laws in effect limiting abortion insurance coverage in private insurance plans, such as fully insured employer plans, written in the state. These state laws also cover private plans offered through health insurance exchanges established under the Affordable Care Act.
Six states require abortion coverage in private health insurance plans, Guttmacher said.