Early in the morning on Friday, June 24, 2022, the Supreme Court of the United States (SCOTUS) issued a decision in Dobbs v. Jackson Women’s Health Organization that overturns the high court’s previous decisions on Roe v. Wade (1973) and Planned Parenthood v. Casey (1992). There is no longer a federal constitutional right to access abortion services, meaning it’s up to each State to determine whether and to what extent access to abortion services is legal. This creates a burden on group health plans with multi-state participants as plan sponsors must consider the laws and regulations in each applicable state.
In the 6-3 majority opinion, Justice Alito wrote:
“The Constitution does not confer a right to abortion; Roe and Casey are overruled; and the authority to regulate abortion is returned to the people and their elected representatives.”
What Does This Mean for Employers?
Numerous states have enacted laws severely restricting legal access to abortions (some of these are “trigger” laws that go into effect soon after the overturning of Roe), while other states have enacted laws to legally protect access to abortions.
We have seen numerous employers make headlines, from Amazon to Tesla, that their health plans will not only cover abortions but will also cover transportation costs when it’s necessary to travel to another state to seek legal abortion services. This is a risky proposition without legal representation, especially when headquartered in a state that makes it illegal to assist someone in accessing abortion services.
The federal government has encouraged employers to hide behind HIPAA with respect to whistleblowers notifying a state government of a provision that violates state law. Further, ERISA might preempt some of these state laws with respect to self-insured or multi-state health plans. However, this doesn’t necessarily provide complete legal protection for employers, especially with regards to civil and criminal lawsuits authorized by such states.
There will certainly be a patchwork of state laws that multi-state group health plans will need to be cautious of when considering group health plan impacts. We expect this to be a developing story for the months ahead so it’s prudent to seek legal counsel prior to making plan changes.
We will continue to monitor updates and changes accordingly. In the meantime, the recording here features a discussion of Cammayo’s Compliance Talk regarding the group health plan design impact of Roe V. Wade being overturned.