Reproductive Care Policy FAQ: How can employers respond to the Dobbs v. Jackson ruling?
The Supreme Court ruling on Dobbs v. Jackson has resulted in one of the largest healthcare policy shifts in recent history. Weeks later, many HR and business leaders still have questions on how this ruling may impact the healthcare benefits their employees receive.
And we still don’t have all the answers — but as news unfolds, we turned to the experts for guidance. In a recent webinar event, we were joined by a panel of legal, compliance, and benefits experts to answer employers’ top questions on this ruling.
Watch the Employer Reproductive Care webinar recording here, and read on for key takeaways.
How does the Supreme Court ruling on Dobbs v. Jackson impact the U.S. healthcare system?
On June 24, 2022, the Dobbs v. Jackson Women’s Health Organization decision overturned the Roe v. Wade (1973) and Planned Parenthood of Southeastern Pennsylvania v. Casey (1992) decisions that pre-empted state restrictions on abortion, ultimately determining that there is no constitutional right to abortion.
In anticipation of the ruling, a number of states have enacted various laws regarding abortion access and its associated insurance coverage. Several other states are expected to take action to restrict, curtail, or ban abortion.
How will the Dobbs v. Jackson ruling impact employers?
As Matthew Damm, Counsel of Employment Law at Fenwick & West, emphasized, “There is no one-size-fits-all here. There are a number of different considerations at play: employer size, whether you're fully insured, whether you're self-insured.”
Still, the answer depends largely on the state where employees reside. If an employer has employees who are based in a state where abortion is now illegal, their medical coverage may change. In other words, some medical offerings may no longer be available to them in their home state. This means that the healthcare coverage employers are able to provide may change as well.
How does an employer’s funding arrangement impact their ability to provide reproductive healthcare?
The way an employer provides healthcare to their employees is influenced by their funding strategy — in other words, how they purchase their healthcare.
Most small to midsize employers have fully-funded plans, meaning that they buy their insurance directly from the carrier. Under these plans, they pay the same amount every month, regardless of their utilization.
Some employers opt for self-funded plans, meaning they design their own coverage and pay based on utilization. Generally these plans carry a higher risk of absorbing unexpected claims, but they do give the employer more freedom to build plans around their unique needs, as well as greater opportunity for savings through creative funding solutions and strategies.
Employers who have self-funded healthcare plans may have more flexibility in providing reproductive care than employers with fully-funded plans. Why?
In short, the laws that govern insurance companies can vary state by state. Fully-insured plans must fully adhere to state insurance laws, while self-funded plans have more flexibility.
For fully insured plans, state law preempts federal law. This means that fully-insured plans are primarily governed by the laws of the state where the health plan is domiciled. After such state laws are applied, then federal ERISA law comes into play.
Unlike fully-insured plans, self-funded plans are subject to federal ERISA law first, and then state law. This gives organizations with self-funded plans more freedom in providing coverage for abortive care in states where restrictions on such care have been implemented.
So can employers with self-funded plans amend their plans to offer reproductive care (including access to abortions)? Most likely. But can they offer those services to employees who are based in states where abortion is now illegal? It’s still not certain.
“We are in entirely unchartered uncharted waters,” compliance expert Paul Roberts, Sr. Director of Education & Market Development at Word & Brown, emphasized. “We have not been here before. We don't have much case law to go from... Unfortunately, we're going to need to wait for litigation to occur.”
Are there any legal implications for employers who offer travel benefits or reimbursements to employees who need to travel to another state to access reproductive care?
Short answer: Perhaps — but we don’t know for sure yet.
In the weeks following the ruling, you’ve probably seen announcements from companies who are offering to support employees who must travel across state lines to receive care.
By offering these benefits, do employers make themselves vulnerable to legal action from states where abortions are illegal? It still remains to be seen. This is in part due to aiding and abetting laws held in Texas and Oklahoma, which may criminalize these actions.
“Candidly, that was not really something that was on anyone's radar prior to this decision…given that there was this core constitutional right,” says Matthew Damm. “You certainly did not see any enforcement actions by state agencies for quote unquote aiding and abetting abortions, whether it's through health insurance policy or reimbursement policy. My sense is that is going to change… I think that you have state law enforcement agencies who will attempt to pursue employers criminally for aiding and abetting access to abortion care. And I think it's gonna take a while for the dust to settle, to figure out exactly how this is gonna play out.”
In the weeks following the ruling, some companies who have made these public pledges have received communications from state legislatures threatening legal action. It is still unknown whether these states will follow through on those threats.
If employers want to offer support to employees who need to travel for reproductive care, how should they go about building their plan?
At the core of the issue, this ruling has instilled a barrier to healthcare accessibility for a range of services. And that means you may have employees who have more limited healthcare access compared to other employees. In response, many employers have taken action to restore healthcare accessibility where possible.
Ellen Meza, Senior Director of Global Benefits at DocuSign (and Nava Advisor) explained, “In my opinion, at this point, companies of any size need to decide what they want to do, if anything, to ensure that access to healthcare for all of their employees is the same.”
If your goal is to ensure equitable healthcare access among your employee population — regardless of where they reside — then your employer may consider implementing new benefits like travel reimbursements.
DocuSign recently released a statement affirming their commitment to “Ensuring Fair and Impartial Access to Reproductive Healthcare”:
“Access to quality and equitable family healthcare is essential to the well-being of every member of our team. We are disheartened by today’s Supreme Court ruling as it runs counter to our values, and we believe it’s our responsibility as an employer to ensure fair and impartial access to reproductive healthcare for every member of our team.
“DocuSign will continue to provide the means for all our employees to receive reproductive healthcare wherever it is available. This includes time-off and financial assistance for travel and lodging to obtain reproductive health services in states where those services are available. Today’s ruling only strengthens our commitment to supporting the health, safety, and choice of our employees.”
As their Senior Director of Benefits, Ellen played a significant role in the conversations leading up to this announcement. She walked us through the internal considerations and processes in building the company’s policy.
Their first step was to determine who should be involved in these conversations, and what the company’s stance should be. “For us, it boiled down to access to healthcare.“
After pulling in key stakeholders — including their chief diversity and engagement officer, comms teams, and legal teams, among others — they took the time to consider their culture, their company values, and how to best communicate this internally and externally.
Before sharing their policy with the public, they took care to prioritize internal transparency. “Prior to this public announcement, we wanted to make sure that we were talking to our employees so that as we knew this announcement was coming and that they would understand what our position was.”
But before employers can build an effective plan, they need to consider how the ruling will impact their current benefits offering. Here are some questions to guide your conversations:
- How will your employees be impacted by this ruling? Will their level of healthcare access change?
- How many employees will be impacted?
- Did your policy previously cover services that are now (or will soon be) illegal in states where your employees reside?
- Will you need to make changes to your current plan to ensure compliance?
- If your plans did not previously cover travel reimbursements, will you need to adopt additional plans to provide this service?
If your employer determines that a plan change is needed, Ellen recommends working with your broker. As the expert on benefits, they should take the lead on navigating the process and ensuring that your plan designs will remain intact regardless of geography.
Still, keep in mind that things are still changing — so remain flexible where you can. “There are things that have yet to be tried and cases determined,” Ellen said. “So this isn't all said and done and we need to be ready for that constant change.”
How should HR leaders communicate with their employees about this issue?
Like any other sensitive topic, employers must be strategic about how to address this issue internally.
Before you begin rolling out communications, be sure that your leadership teams are confident on the path forward. If your messaging is vague, it may cause confusion or other negative feelings to bubble up.
Once your leadership teams are aligned on the path forward, create an employee communications plan that is transparent, clear, and accessible. It’s likely that employees will have questions, so be sure they know who (and how) to ask. Creating a safe space for employees to share their feelings — regardless of their opinion on the issue — can help ease anxieties.
We also recommend anchoring the statement in your company values; for example, DocuSign’s statement emphasized their commitment to ensuring access to healthcare among their employees. As Ellen explained, “Have a clear response on what you’re doing as a company that focuses on the universal — healthcare access — and not on the controversial.”
Who can HR leaders turn to for guidance while navigating the reversal of Roe v. Wade?
This is perhaps the most significant change to the healthcare system in recent history. Of course you’ll have questions.
As more news comes out, we’ll probably be in for more change (and more questions). But for now, focus on starting these internal conversations and laying the groundwork for a plan of action.
“You are not alone, even if you feel alone today,” Ellen emphasized. “Your brokers and your consultants are doing a lot of work in the background to understand what's happening to come prepared with solutions.”
Your broker should be your ally and guide when responding to changes to the healthcare and benefits space. Don’t be afraid to reach out to them with questions.
Additionally, Nava Benefits’ Employer Reproductive Care Resource Hub has up-to-date information and guidance to help HR leaders navigate the implications of the Roe v. Wade reversal at their own organizations.
Have additional questions on reproductive care policies and their impact on benefits? Reach out to our team of experts.