By: Kelly Dempsey
June 27, 2023 marked one year since the Supreme Court of the United States (SCOTUS) overturned the constitutional right to abortion in the case of Dobbs v. Jackson Women’s Health Organization. Over the last 12 months, half of the states have passed some type of abortion restriction or complete ban and many more are in the process of creating legislation. Some of these laws include the possibility for civil or criminal penalties against women who obtain abortions, doctors who perform abortions, or even individuals who, broadly, facilitate abortions.
It may be a year old now, but the Dobbs case seems as controversial now as it did the week it came out. While the landscape has continued to evolve state-by-state, with different states reacting in different ways, the various areas of concern for health plans remain the same as they have been since the Dobbs decision.
From a federal law perspective, aside from the preventive care requirement imposed on health plans to cover FDA-approved birth control methods, the Affordable Care Act does not require health plans to cover an abortion procedure. To contrast, the Pregnancy Discrimination Act of 1978 does require health plans to cover abortion where the life of the mother would be endangered if the fetus is carried to term and where there are medical complications. In the post-Dobbs landscape, self-funded plans that want to cover abortion (including related travel) face significant challenges, and ERISA preemption does not apply as clearly as many expect it to (or hope it does, anyway). ERISA preemption does not, for instance, extend to state criminal laws such as those banning the facilitation of abortion.
Compliance with state abortion law isn't the only compliance consideration, though. For instance, some plans have explored increasing their abortion benefits, in particular by adding travel benefits; it is important to keep in mind that the requirement to perform an NQTL analysis (to uncover mental health parity issues) may highlight that abortion travel benefit as a way that mental health and substance abuse claims are perhaps not afforded the same benefits as medical and surgical benefits, since most plans do not offer travel benefits for MH/SUD claims. Additional considerations include the impact to HSA qualified HDHPs, telemedicine, and stop-loss.
It would be absurd to suggest that the self-funded industry has had an easy time navigating all the changing laws, but the Dobbs decision – especially coming out at the same time as other complex laws like the No Surprises Act (which presents yet another, albeit very different type of, landmark change to the self-funded universe) – requires a great deal of extra caution and consideration related to benefit offerings. As we see it, it stresses the importance of making informed decisions by working with claims administrators, brokers, and consultants (like The Phia Group) prior to making decisions about controversial or legally-complex plan provisions.
Phia has always recommended that plan documents be reviewed on an annual basis, and every year we seem to be proven right all over again. Our goal is to help ensure that yours or your clients’ plans provide robust benefits without running afoul of applicable laws, but that gets harder and harder all the time! Luckily, we’re up to the challenge, and we know you are too.