Group Health Plans In The Crossfire: Facilitating Reproductive Choice In The Wake Of Dobbs v Jackson Women's Health

• Published date: 29 June 2022
• Subject Matter: Employment and HR, Retirement, Superannuation & Pensions, Health & Safety, Employee Benefits & Compensation
• Law Firm: Mintz
• Author: Mr Alden Bianchi, Jennifer Rubin, Michelle Capezza, Corbin Carter and Michael Arnold

On June 24, 2022, the Supreme Court issued its much-anticipated decision in Dobbs v. Jackson Women's Health Organization. The decision explicitly reverses Roe v. Wade, thereby radically altering the legal and political calculus of the debate over access to abortion. The Court overturned nearly 50 years of precedent on broad grounds, which, among other things, impacts the rights of women to make decisions and seek medical treatment respecting their reproductive health. Significantly, Dobbs also impacts whether and how an employer offers abortion coverage and reimburses travel costs under employer-sponsored group health plans.

This post examines the benefits and tax-related issues that employers will confront if they seek to amend their group health plans, or adopt new plans, programs or arrangements, all in an effort to facilitate employee reproductive choice in a post-Roe v. Wade environment. Future posts will examine the other impacts Dobbs will have on the workplace.

The Supreme Court Finds There is No Constitutional Right to Abortion in Dobbs

Dobbs examined Mississippi's Gestational Age Act, which provides that "[e]xcept in a medical emergency or in the case of a severe fetal abnormality, a person shall not intentionally or knowingly perform . . . or induce an abortion of an unborn human being if the probable gestational age of the unborn human being has been determined to be greater than fifteen (15) weeks." The law was enacted as a direct challenge to the Supreme Court's precedents establishing a constitutional right to abortion in Roe v. Wade and Planned Parenthood of Southeastern Pa. v. Casey. The District Court and the U.S. Court of Appeals for the Fifth Circuit ruled against the State of Mississippi based on this precedent. The State of Mississippi appealed, claiming that Roe and Casey were wrongly decided. The Supreme Court, in a 6 to 3 decision, agreed with Mississippi.

The Court's majority held that Roe and Casey were wrongly decided as the Constitution nowhere confers a right to abortion. Specifically, in overturning long-standing precedent, the majority held that the Constitution makes no express reference to a right to obtain an abortion, and it was also unwilling to find such a right in any of the First, Fourth, Fifth, Ninth, or Fourteenth Amendments, on which the right to abortion was previously anchored. The crux of the decision is a simple, stark determination: The right to an abortion is not a fundamental right protected by the U.S. Constitution.

The Employer's Perspective

In light of Dobbs, and whether driven by political ideology, workforce demands, or other considerations, many employers will seek to facilitate the exercise of reproductive rights by their employees. This will include striving to make abortion available to employees living in jurisdictions that bar it by subsidizing travel to jurisdictions that permit it. In so doing, employers will need to comply with conflicting Federal and state laws, while at the same time accounting for legal risk. ERISA's broad preemption provisions are ground zero in this legal battle. While the jurisprudence surrounding ERISA preemption is expansive (the Supreme Court has issued over 30 cases on the subject), the issues presented in this context are relatively straightforward even if the answers are sometimes less than clear.

It is estimated that some 26 states are now either likely or certain to ban abortion. Certain states had so-called "trigger" laws that will quickly cause dormant abortion bans to now take effect. Some states have already enacted laws barring the aiding and abetting of the performance or inducement of an abortion, and other states are likely to follow suit. These laws may aim to hold employers and insurance carriers criminally liable for paying for or reimbursing the costs of abortion and abortion-related services such as travel.

Perhaps anticipating questions related to travel benefits, Justice Kavanaugh, in his concurring opinion...