Articles | July 20, 2022

With Roe Overturned, 10 Questions for Employers to Consider

Organizations have myriad issues to consider with Roe v. Wade overturned by the U.S. Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization, resulting in the authority to regulate abortions being returned to states. We discussed implications of that decision and considerations for organizations in our June 24, 2022 insight.

To help employers clarify an appropriate path forward, we’ve identified 10 key questions for HR to help answer.

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Questions Considerations
1. How important is this decision to our organization?

To answer this question as completely as possible, consider in what ways this decision:

  • Might impact your organization and its people
  • Is consistent with or opposed to your organization’s mission, vision and values
2. What parts of the employer-employee social contract may need to be reviewed and possibly adjusted?

Consider every aspects of the evolving employer-employee social contract, including these:

  • Pay
  • Benefits
  • Hiring
  • Staffing
  • Scheduling
3. What’s our risk tolerance related to these issues?

Answering this question with confidence requires addressing these tough questions:

  • For self-funded plans, will ERISA preemption apply to state laws on abortion?
  • Does covering abortions present legal risks to our organization?
  • Does covering abortions present legal risks to our employees and their dependents?
4. What do our current health benefits cover?

Examine the following benefits:

  • Elective and/or medically necessary abortions (via medical or medication pathway)
  • Medical tourism (under what circumstances? Taxable limits or beyond?)
  • Plan B contraceptives with or without a prescription
  • Contraceptives at no cost to the patient (in network)
  • Mail order availability of contraceptives
  • Provider network limitations
  • Telemedicine coverage
  • Access to doulas
  • Pre- and post-natal care
  • Lactation and nutrition support
  • Genetic testing
5. What other current benefits are relevant to the issue?

Other relevant benefits include:

  • EAP/mental health support
  • Coverage under medical reimbursement accounts
  • Paid parental leave benefits
  • Adoption benefits
  • Family planning benefits, including fertility benefits
  • Caregiver benefits
  • Relocation support
6. What do we spend today on each of these benefits? You need to understand your current spending so you can project what may change in the future as accurately as possible. Data mining can be an invaluable part of this important process.
7. What, if anything, should we consider changing based on our organization’s mission, vision and values?

When answering this question, consider these factors:

  • What, if anything, are we hearing from our people in response to the Dobbs decision?
  • Based on our benefits and the decision, what challenges may our workforce face?
  • In which states do our employees live and work?
  • Is this ruling likely to result in more of our people having babies?
  • How would having more dependents affect our benefits going forward?
8. How will potential benefit changes impact our workforce and our benefits costs?

Possible impacts include:

  • Increased claims costs
  • More requests for leave
  • More dependents
  • More tuition costs
9. How will we address these issues within the organization?

Options include:

  • Benefit changes
  • Internal communications
  • Employee resource groups or other social groups
10. Should we take a public stance, based on our organizational values?

When considering whether to make a public statement, consider:

  • Employee and customer expectations
  • Legal risks

Answering these questions requires seeking input from various sources

When developing answers to these questions, you’ll need to reach out to these people:

  • Senior leadership
  • Legal counsel
  • The benefits team
  • The communications team
  • Insurers
  • Public relations professionals

Not everyone on this list needs to be involved in answering each question, but they all need to be consulted at some point.

Action items

Be sure to include these items on your to-do list:

  • Review current benefits
  • Measure current utilization
  • Project future costs with or without changes being contemplated
  • Assess risk areas
  • Draft plan language
  • Create employee communications

Plan sponsors should consult with legal counsel prior to implementing actions concerning abortion coverage because some plans may be subject to state insurance law or other laws.

While these actions may seem daunting, keep in mind that you don’t have to go it alone!

Not sure how to start?

We can help. Let’s talk!

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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.