On July 18, 2022, Venable attorney Juliana Reno was quoted in BenefitsPro on what the U.S. Supreme Court's ruling in Dobbs v. Jackson Women's Health Organization, which effectively ended the constitutionally protected right to an abortion in the United States, means for benefit plans.
According to the article, many companies that have employees in multiple states are facing multiple laws and possible legal issues. Some states have “trigger laws " that may be decades old but will go into effect now that Roe v. Wade has been overturned. Some states with those laws currently have pro-choice governors and attorneys general who say they will not enforce the laws on the books. Other states have been incrementally chipping away at abortion rights and may attempt to quickly pass more universal bans. In addition, states may end up having both civil and criminal statutes on the books, which will affect the impact on employer-sponsored health plans.
“It's just one rabbit hole after another, " says Reno. “It varies state by state, and the thing I worry about for my clients is whether a state makes it impermissible to pay for an abortion that happens in another state. "
Probably the most-discussed option for employers is whether a travel benefit for health services is offered to employees. “I think really the questions on the benefits side are: ‘Are you going to cover abortion, and are you going to cover travel?' " Reno says. “There are a lot of issues, but those are the two fundamental questions. "
Reno and other experts agree that many employers will try offering a self-funded medical travel benefit that is not limited to travel for abortion services. Because of ERISA, self-funded plans are exempt from most state civil laws, and although the service may be banned on the provider side in State A, employees would have the option to travel to State B, where providers can still offer the procedure.
Click here to access the article.