Comply With Us

The Dobbs Decision

July 5, 2022

Friends, as you all know, the two of us are nerdy political junkies to the core. So, lately, we’ve been chatting about what most policy-minded Americans are discussing (besides ketchup-stained walls and potential witness tampering). The Supreme Court of the United States’ decision in Dobbs, et. al. v. Jackson Women’s Health Organization is what we, and many other Americans, can’t stop talking about. The two of us are dear friends, but we come at this decision from different places. For example, our views differ drastically on whether life begins at conception or not. 

However, we are both women and mothers, and between the two of us, we’ve been pregnant eight times. One of those much-wanted pregnancies ended tragically in an emergency room with the need for lifesaving medical care. The medication and healthcare rendered were not termed “abortion services” when provided, but instead the best possible medical option to preserve future fertility. Best we can tell, though, that exact same medical care is now illegal in at least three states due to the Dobbs decision. It may become illegal in up to six more soon, depending on state legislatures and pending legal action. In at least 26 more, it is unclear if medical providers could or would provide all types of medical services that could be deemed medically necessary to protect against endangerment to a mother. This uncertainty is because of unclear and unscientific state legislative language about what constitutes a “life of the mother” exception. 

We’re also both benefits compliance professionals, and over the past week, we’ve been besieged with questions about how some employers might cover abortions and related services in all states, including travel expenses to states where abortion access is less restricted. First, for an employer to do this legally is trickier than many think (and could/might be another blog post in and of itself). For now, we’ll just say that any employer thinking of adding such provisions to an employee benefit plan should seek the services of experienced compliance professionals. However, in researching the options for existing clients, we found something very interesting tracing back to 1978. That’s the year Congress amended Title VII of the Civil Rights Act of 1964 to prohibit discrimination based on pregnancy, childbirth, or related medical conditions.

The text of the Pregnancy Discrimination Act of 1978 seems to require employer group health benefit plans to pay for abortions where “the life of the mother would be endangered if the fetus were carried to term,” or where “medical complications have arisen from an abortion.”  This means, right now in some states, it is impossible for group health benefit plans to comply with both the state law regarding abortion access and the federal Civil Rights Act’s requirement that they cover medically necessary abortions “if the life of the mother would be endangered if the fetus were carried to term.” This conflict is the result of state laws that have limited protection for abortions needed to protect the health of the mother. In many cases, even where such exceptions exist, the state-level legislative language allowing such an exception is either unclear or sets a higher legal bar than the federal standard of “endangered.”  Another possible conflict for group health plans is the Affordable Care Act’s network adequacy requirements, which apply to qualified health plans, such as those sponsored by employers who offer coverage through a small group or SHOP exchange. In addition, there are many state-level network adequacy requirements applicable to both fully insured employer group plans and the network providers and health insurance issuers who serve as vendors to self-funded plans. 

Put another way, under federal law, employers that offer group health insurance to employees have to provide coverage for all medically necessary “abortions” if the mother’s life would be endangered by the pregnancy. This standard of care is higher than what is currently legal in some states, and it is now questionably legal in many others given the Dobbs decision. One potential way for an employer to get around this complication might be to cover out-of-state care for these services, but that raises two serious issues. One is timing since in most cases this type of care needs to be provided very quickly. The second issue affects group health plans with a provider network, since federal and/or state network adequacy laws may require the plan or its network vendor to provide local access to medical professionals to perform these services. In our minds, all these discrepancies set up serious legal conflicts for employee benefits plans that may involve the supremacy clause of the Constitution as well as state-based legal issues.

What do you think friends?  Is this as big of a deal as we think it is?  Are state laws limiting or prohibiting abortion services and narrowly and/or inexpertly defining exceptions to protect the health of the mother putting employer group health plan sponsors at risk of violating the federal Civil Rights Act and potentially other state and federal laws?  Do you think lawsuits on this issue may be coming soon?  What about making state legislatures aware of the potential conflict?  If state lawmakers are aware, will they make sure any state-level laws restricting access include exceptions to protect maternal health as broadly as federal law requires?  Let us know what you think!