The Baldwin Regulatory Compliance Collaborative
In a 6-3 decision, the U.S. Supreme Court has ruled in the case of Dobbs, et al. v. Jackson Women’s Health Organization, et al., that there is no constitutional right to an abortion and that the authority to regulate abortion rests with the state governments. This ruling overturns Roe v. Wade, the prior court’s decision from 1973 to legalize abortion as a constitutional right, which was later affirmed in another landmark case, Planned Parenthood v. Casey, in 1992.
EMPLOYER CONSIDERATIONS
The full impact to employers and the employee benefit plans that they sponsor is still unknown at this time as many open issues remain. What is known, however, is that abortion access in many states will be curtailed altogether and that navigating the various patchwork of state laws throughout the country is not going to be easy, especially for employers with employees in multiple states. It is anticipated that in the months ahead, that the country will position itself into basically two separate camps: those states that will severely restrict or eliminate abortion altogether versus those states where abortion will remain legal and the status quo maintained. Currently, nearly half of the states either have laws in place or are ready to curtail or outlaw abortion coverage altogether, even with respect to policies purchased through the Health Insurance Marketplace (“Marketplace”), and 22 states restrict coverage for public employees. On the other end of the spectrum, we have and 16 states plus the District of Columbia that have laws protecting access to abortive care. Furthermore, many of these states require health plans, including those purchased through the Marketplace, to cover abortion services.
To complicate matters further, from an employer perspective, application of abortion laws and restrictions will now depend on the state in which the health plan or policy is sitused, and whether it is fully insured or self-insured. Specifically, fully insured plans that are sitused in states where abortion is legal and health plans that are self-insured and not subject to state law (essentially non-ERISA health plans) should have more flexibility in providing abortion coverage to its participants, at least in states where abortion is still legal.
Some employers and insurers have already announced their intention to step in and fill the gap left behind as much as possible in states that move to restrict abortion. For example, to address the importance for participants to continue having access to coverage, Dick’s Sporting Goods has indicated it will provide up to $4,000 in travel expense reimbursement to a location where care is legally available. Aetna has also added a travel and lodging benefit to its standard claim procedures for its self-insured employer clients.
ADDITIONAL INFORMATION
Additional information regarding the potential impact on employers is available here.
We will keep you abreast of further developments as we gain additional clarity with regard to specific state actions on this issue. In the meantime, for questions regarding this Legislative Update or any other related compliance issues, please contact your Burnham Benefits Consultant or Burnham Benefits at 949‐833‐2983 or inquiries@burnhambenefits.com.
This Legislative Update was prepared by the Baldwin Regulatory Compliance Collaborative (the “BRCC”), a partnership of compliance professionals offering client support and compliance solutions for the benefit of the Baldwin Risk Partners organization, which includes: Jason Sheffield, BRP National Director of Compliance; Richard Asensio, Burnham Benefits Insurance Services; Nicole L. Fender, the Capital Group; Bill Freeman, AHT Insurance; Stephanie Hall, RBA/TBA; Caitlin Hillenbrand, AHT Insurance; Paul Van Brunt, Baldwin Krystyn Sherman Partners (BKS); and Natashia Wright, Insgroup.
Burnham Benefits and the BRCC do not engage in the practice of law and this publication should not be construed as the providing of legal advice or a legal opinion of any kind. The consulting advice we provide is intended solely to assist in assessing its compliance with applicable federal and state law requirements, and is based on our interpretation of federal guidance in effect as of the date of this publication. To the best of our knowledge, the information provided herein, and assumptions relied on, are reasonable and accurate as of the date of this publication. Furthermore, to ensure compliance with IRS Circular 230, any tax advice contained in this publication is not intended to be used, and cannot be used, for purposes of (i) avoiding penalties imposed under the United States Internal Revenue Code or (ii) promoting, marketing or recommending to another person any tax-related matter.