In the most consequential reproductive rights case in generations, on June 24, 2022, the U.S. Supreme Court ruled that the Constitution of the United States does not protect the right to obtain an abortion. This ruling returns the authority to regulate abortion to the states and is effective immediately.
While the full implications of this ruling will take time to ascertain, employers and plan sponsors across the U.S. need to consider its impact sooner rather than later.
Group health plan sponsors should work with insurers and legal counsel to review their health plan and prescription coverage provisions, transportation reimbursement benefits, prenatal and neonatal expenses, mental health and employee assistance programs and associated participant communications. ERISA group health plan sponsors will likely watch litigation unfold that challenges the authority of state abortion laws as applied to federally regulated ERISA plans.
Employers and plan sponsors may also consider whether to implement changes outside the group health plan context — for example, revisiting dependent care and education savings benefits, caregiver support, paid time off and parental leave policies and workforce diversity, equity and inclusion initiatives, as well as the longer-term impact of this decision on their employees’ financial security and retirement readiness.
Dobbs v. Jackson Women’s Health Organization (Dobbs) concerns the constitutionality of a Mississippi state law that bans abortions after the 15th week of pregnancy, except in cases of medical emergencies or fetal abnormalities. A Mississippi women’s health clinic sued the State of Mississippi in federal court to challenge this law as an unconstitutional ban on abortions. The trial court agreed that the Mississippi law is unconstitutional and invalidated the law, and the Fifth Circuit Court of Appeals affirmed this decision. The State of Mississippi appealed the Fifth Circuit’s decision, challenging the underlying constitutionality of the 49-year-old Roe v. Wade decisions and related Supreme Court cases that prohibit states from banning or unduly restricting abortions. Oral arguments were held on December 1, 2021.
On May 2, 2022, the news organization Politico published a leaked Supreme Court draft opinion of Dobbs that declared the Roe decision “egregiously wrong from the start” and would explicitly overrule Roe’s federal constitutional protection of abortion rights — meaning that states could ban or restrict abortion services. Although the draft was verified as accurate, at the time it was unclear whether, or to what extent, the text in the final Dobbs ruling would resemble the text of the draft opinion.
In its official 6-3 decision released on June 24, 2022, the Court majority held that the authority to regulate abortion belongs to the states and not the federal government. The Court majority found that obtaining an abortion is not a fundamental constitutional right because such a right has no basis in the Constitution’s text or in our nation’s history. Consequently, state laws regulating abortion, including the Mississippi law, are constitutional.
The implications for abortion services will vary and, to some degree, depend on how state legislatures react to the decision. Thirteen states have so-called “trigger laws” that would ban abortion immediately or very quickly if the Supreme Court invalidates Roe; five states had abortion bans pre-Roe that could again be enforced; and 14 states could restrict abortions before 22 weeks of pregnancy or earlier.
|Trigger Laws||Pre-Roe Abortion Bans||Restrict Abortions Before 22 Weeks of Pregnancy or Earlier|
Additionally, a Texas law — which the Supreme Court declined to invalidate in its 2021 Whole Women’s Health v. Jackson decision — provides a civil right of action for private citizens to sue providers and individuals who “aid and abet” abortions. It is anticipated that other states may adopt a similar law. Many organizations are also closely watching state criminal laws prohibiting individuals from receiving, or assisting others to receive, abortions in a state where it is lawful. This risk may apply to employers and/or plan sponsors who are charged with aiding and abetting such activities.
It is not clear whether, or to what degree, the state law at issue in Dobbs and other state laws that ban or restrict abortion services affect plans governed by ERISA. Since the 1973 Roe decision, the year before Congress enacted ERISA, courts have not considered the question of whether ERISA preempts, or trumps, a state law (civil or criminal) that bans or restricts abortion services and/or prohibits providers and individuals from facilitating abortion access. We expect that the ERISA preemption discussions concerning abortion services will become more robust as states consider abortion legislation. Governmental employers and their health plans are not subject to ERISA.
Even assuming ERISA preemption applies, as a practical matter, participants and dependents in states that ban or restrict abortion may not have reasonable access to abortion and/or other reproductive health services. This lack of access could also have consequences for a wide range of reproductive health services, including miscarriage care if there is a dearth of providers both trained and available to provide the necessary medical treatment and/or pharmacies able to prescribe associated medicines.
Employers and other plan sponsors will need to decide how this decision impacts their employee benefit programs and other HR policies. Below are some action items to consider. Because these issues may involve legal risk, however, plan sponsors should confer with their legal counsel before moving forward.
This page is for informational purposes only and does not constitute legal, tax or investment advice. You are encouraged to discuss the issues raised here with your legal, tax and other advisors before determining how the issues apply to your specific situations.
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