Roe v Wade Overturned: Implications For Plan Sponsors

Published date28 June 2022
Subject MatterEmployment and HR, Food, Drugs, Healthcare, Life Sciences, Retirement, Superannuation & Pensions, Employee Benefits & Compensation
Law FirmWinston & Strawn LLP
AuthorMr Steve Flores, Amy M. Gordon, Joanna C. Kerpen, Susan M. Nash and Jamie A. Weyeneth

In a landmark decision, Dobbs v. Jackson Women's Health Organization, a divided Supreme Court of the United States has overturned Roe v. Wade and Planned Parenthood of Southeastern Pa. v. Casey, revoking the constitutional right to an abortion. The impact of this decision returns the right to regulate access to abortion to the states. As a result, access to legal abortion services in at least 22 states will be significantly reduced or entirely prohibited. Given the significance of the ruling, employers are now in the process of analyzing how and whether to provide additional support for employees and their dependents seeking abortion services if they live in states that restrict or prohibit such access and understanding the legal and practical implications of providing such support.

This ruling will impact health plan-covered services within certain states with significant restrictions or bans on abortion. In addition, some states have enacted or are considering laws intending to block patients from traveling across state lines to access abortion clinics and from receiving abortion-inducing pills through the mail or telehealth. ERISA self-insured plans may be able to argue that ERISA preempts certain state civil and insurance laws, but unlikely that ERISA will preempt state criminal laws. Fully insured plans will have to comply with all applicable state insurance, civil and state criminal laws. These state laws will certainly hamper plan participants from accessing abortion care if not preempted by ERISA.

Given the significance of the ruling, employers are now in the process of analyzing how and whether to provide additional support for employees and their dependents seeking abortion services if they live in states that restrict or prohibit such access and understanding the legal and practical implications of providing such support. While not an exhaustive list, below are some of the options employers are considering, each of which has its own unique legal considerations:

  1. Amend existing medical plan to enhance the travel/out-of-area and prescription drug benefits. Employers with self-insured ERISA group health plans may be able to expand the medical travel benefit under the plan to include travel out of state to network providers in other states where abortion remains legal. Expanding such benefits will need to be discussed and approved by the plan's third-party administrators. Many employer plans already provide some form of travel benefit, usually for...

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