On June 24, 2022, the Supreme Court issued its much-anticipated decision in Dobbs v. Jackson Women’s Health Organization, which stated that there is not a constitutionally protected right to terminate a pregnancy. Employers are now faced with the task of determining how this decision will impact their workforce and their benefit offerings.

Self-Insured Plans — as a self-insured plan, your plan is not subject to state insurance mandates because they are entitled to ERISA preemption. Therefore, unlike fully-insured plans, self-insured plans have more leeway regarding design (including control over coverage); and, because there is no federal prohibition on plan coverage of abortion, self-insured plans can generally choose to offer (or not offer) coverage for abortion services, or to limit the coverage to specific circumstances. However, there are several exceptions to the ERISA preemption rules including that ERISA does not supersede “any generally applicable criminal law of a state.” ERISA preemption has generally been interpreted to apply only to civil actions, and not as a shield against criminal liability under state laws. Although we are not aware of any states that currently are actively enforcing criminal statutes against employers providing or members seeking such services through their group health plan, there are states that do make it a crime for the abortion provider. This could change as states delve into their legislation on this subject. It is estimated that some 26 states are now either likely or certain to ban abortion. Certain states had so-called “trigger” laws that will quickly cause dormant abortion bans to now take effect.

Diversified Response: With a few exceptions, the majority of our client’s plan documents are silent on abortion coverage, which in turn means that it is a covered service under treatment of pregnancy. Beginning with your next renewal, we will be amending plan documents to specifically cover or exclude abortion coverage from the plan to eliminate any ambiguity as to intent. Your sales team will discuss this with you at that time and review your plan’s current coverage situation. If you prefer not to wait until your next renewal, please notify your sales team and we will work with you to amend the plan accordingly (clearly cover or exclude). For abortion exclusions, until otherwise changed by law, we will be following the Federal Pregnancy Discrimination Act which requires ERISA plans to cover services for abortion when performed to save the life of the mother.

The claims process we undertake when we receive a claim for an elective abortion will remain the same as today. We will pay the claim as treatment of a pregnancy unless specifically excluded in the plan document. The laws in each state are evolving and each state contains nuances of what is acceptable and what is not. Since the majority of the laws in states banning or limiting abortion have focused their criminal penalties on the abortion provider, not the member or health plan, our claims department will assume if the claim comes in, it was performed legally and pay the claim unless specifically excluded in the plan.

We will keep you updated as this issue continues to evolve.

DG Compliance