We’re committed to helping the hundreds of HR teams we serve navigate the implications of the Roe v. Wade reversal for their own organizations.
While there remain substantial legislative unknowns, this resource hub provides you with the latest information, resources, and statements to guide your organization through this massive healthcare change. We won’t pretend to know all the answers yet, but we will tap into our broad advisor and subject matter expert network to update this page as new data, resources, and decisions become available.
State insurance laws generally apply to ERISA-covered fully insured health plans.
State insurance laws will vary on what coverage may be offered or restricted in fully insured group plans and public employer plans issued in that state. A state law could prohibit these plans from covering certain abortions.
Self-insured health plans are not subject to state insurance laws because of the preemption clause of the Employee Retirement Income Security Act of 1974 (ERISA).
This means you may have more broad flexibility in structuring health benefits. For instance, certain abortions might not be available within a particular state, but a self-insured plan could cover them where available in other states.
• Whether the PDA’s protections will play a role in cases involving state anti-abortion laws;
• Whether paying for or reimbursing the costs of an employee’s out-of-state abortion “through insurance or otherwise” could be prosecuted under “aiding and abetting” clauses (currently in place in Texas and Oklahoma); and
• Whether ERISA’s preemption provisions can be used as a defense in any potential criminal or civil case brought under state anti-abortion laws.
To help you navigate the quickly-evolving situation, we’ve pulled together a number of HR- and employee-focused resources that can help you determine the right next steps for your organization. Please note that we are still waiting for official statements from the major insurance carriers and implications on a state-by-state basis.
In anticipation of the U.S. Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization that overturned Roe v. Wade, states have enacted various laws regarding insurance coverage of abortion. Some states have banned or restricted abortion coverage, while other states require plans to cover abortions. Certain states (such as Oklahoma and Texas) now enable individuals to bring civil lawsuits against anyone who assists in the performance or inducement of abortion, including paying for or reimbursing the costs of the procedure through insurance or otherwise. It is unclear whether individuals can sue companies that cover travel expenses for legal out-of-state abortions.
While this update outlines the factors for employers to consider regarding providing abortion-related benefits, many of the issues surrounding these types of benefits remain open questions at this time. Legal challenges to these laws are already underway, and more are expected in the future.
Two key laws address abortion benefits at the federal level: the Pregnancy Discrimination Act (PDA), which amended Title VII of the Civil Rights Act of 1964, and the Affordable Care Act (ACA). The PDA applies to employers with 15 or more employees, including state and local governments.
Pregnancy Discrimination Act
The Pregnancy Discrimination Act (PDA) protects women from being fired for having an abortion or contemplating having an abortion. It also prohibits adverse employment actions against an employee based on their decision not to have an abortion. For example, it would be unlawful for a manager to pressure an employee to have or not to have an abortion in order to retain their job, get better assignments or stay on a path for advancement.
Insurance Coverage of Abortion
The PDA makes clear that if an employer provides health insurance benefits, it is not required to pay for health insurance coverage of abortion, except where the life of the mother would be endangered if the fetus were carried to term or medical complications have arisen from an abortion. If complications arise during the course of an abortion, the health insurance plan is required to pay the costs attributable to those complications. In addition, an employer’s health plan is permitted to provide health coverage for an abortion, although not required. If the plan covers the costs of abortion, it must do so in the same manner and to the same degree as it covers other medical conditions. Potential problems could arise, for example, if the plan covers abortions but on different terms and conditions than those that apply to other medical conditions, or if the plan provides comprehensive medical benefits but doesn’t cover abortion when the life of the mother would be endangered if the fetus were carried to term.
Open Issue: Whether the PDA’s protections will play a role in cases involving state anti-abortion laws.
While there is no specific mandate or ban on covering abortion costs at the federal level, many states have passed their own regulations regarding abortion coverage. In the wake of the Dobbs decision, more states are likely to ban or restrict abortion coverage under all health plans. The scope of benefits that may be provided by a health plan will depend on the specific restrictions that are imposed at the state level. This section outlines key state law issues to consider.
In states like Texas and Oklahoma that ban “aiding and abetting” the procurement of illegal abortions, it remains to be seen how these laws will apply to employers providing benefits for their employees to receive legal out-of-state abortions. While the plain text of the laws state that paying for or reimbursing the costs of abortion “through insurance or otherwise” is prohibited, it is unclear whether, and to what extent, this would apply to coverage of lawful out-of-state procedures. This type of jurisdictional issue will likely need to be decided in court.
Open Issue: The extent to which one state’s insurance laws will apply to employers’ reimbursement of travel expenses for employees to procure out-of-state abortions. Whether the PDA’s protections will play a role in cases involving state anti-abortion laws.
In general, self-insured health plans are not subject to state insurance laws because of the preemption clause of the Employee Retirement Income Security Act of 1974 (ERISA). If a self-insured plan is not subject to ERISA, ERISA’s preemption clause does not apply, and the plan may be subject to state laws. Similarly, state insurance laws generally apply to ERISA-covered fully insured health plans. ERISA preemption could potentially be used as a defense for self-insured health plans providing abortion benefits in states that regulate abortion. However, it is unclear whether a state law criminalizing the practice—or state laws that prohibit persons from “aiding and abetting” the procurement of illegal abortions—could be used against employers providing abortion benefits through self-insured, ERISA-covered plans.
Open Issue: Whether ERISA’s preemption provisions can be used as a defense in any potential criminal or civil case brought under state anti-abortion laws.