The U.S. Supreme Court decision to overturn Roe vs. Wade raises a critical question few companies may have anticipated: whether their self-funded health plans are subject to state criminal laws.
Employers with fully-insured plans – coverage purchased through an insurer – must comply with all applicable state insurance, civil and state criminal laws. But self-funded companies are governed by the Employee Retirement Income Security Act, or ERISA, a 1974 federal law that bars states from dictating what health plans can and cannot cover.
While ERISA pre-empts certain state civil and insurance laws, the same cannot be said about state criminal laws. That there will be court battles on this question is without question.
About two-thirds of U.S. workers are covered by self-insured plans.
Employers’ ability to offer coverage for abortion services across state lines - and their employees’ ability to access such services - have not been questioned until the court’s decision.
It will no doubt take some time to resolve these and other questions that cropped up following the Supreme Court’s ruling. This will be especially true for companies with operations in multiple states.
Companies that attempt to skirt abortion laws in their states could well face lawsuits from those state governments or anti-abortion groups.
One little-noticed passage in the concurring opinion, written by Justice Brett Kavanaugh, could play an important role in any coming court battles.
States, he wrote, cannot bar their residents from traveling to another state for an abortion based on a “constitutional right to interstate travel.”
In other words, under the Dormant Commerce Clause of the Constitution, states cannot pass legislation that interrupts interstate commerce. Abortion is a service, a form of commerce.
Will this give states reason enough not to try enforcing abortion laws against employers and women who seek a legal abortion? That’s unclear.
In light of all of this, employers will want to look closely at their benefits package to gauge whether it adequately reflects their culture, beliefs and desires of their employees.
As we’ve already seen, some companies are changing the terms of their health plans to include coverage for travel expenses to obtain medical care.
ERISA allows employers to expand their coverage during a plan year to allow for travel costs and coverage of non-network abortion providers as long as employee premiums don’t change. Many employer plans already provide some form of travel benefit, usually for transplants or travel to so-called centers of excellence.
There’s more to all of this, of course, but remember: any employer that provides health benefits to its employees will be impacted to one degree or another by the Supreme Court decision, whether self- or fully funded.
And, yes, this would be a good time to engage with your benefits advisor to ensure that any reproductive health benefit options in your plan are being administered in accordance with applicable law.
The Mahoney Group is one of the largest independent commercial insurance and employee benefits brokerages in the U.S. For more information, contact us online or call 877-440-3304.
This article is not intended to be exhaustive nor should any discussion or opinions be construed as legal advice. Readers should contact legal counsel or an insurance professional for appropriate advice.