“Employers that are considering offering abortion-related benefits, such as out-of-state travel to a jurisdiction where abortion laws are more accommodating, should keep in mind compliance and liability considerations, benefits advisors point out,” reported the Society for Human Resource Management (SHRM) after Roe was overturned. “Employers that operate in multiple states will also need to navigate a patchwork of different rules affecting abortion coverage, depending on where covered employees and dependents live, work and receive health care.”
Texas was one of several states with so-called abortion trigger laws, which went into effect when Roe v. Wade was overturned.
One lawyer told the Society for Human Resource Management that “in states such as Texas, where a new state law bans most abortions after about six weeks and allows private citizens to sue anyone who “aids and abets” a prohibited abortion, “we are likely to see litigation of this issue” of employers reimbursing abortion travel and providing related benefits.”
D magazine reported that Lone Star State employers whose benefits had previously covered abortions were left with questions on multiple levels, including what was “advisable from a business standpoint, and what was legal?”
“Employers are having to reevaluate and make adjustments to their health plans,” reported D magazine. “Some are offering a flexible spending account; others are upping their coverage for childbirth to support their employees when there are often more jobs than people. The war for talent means that companies may be willing to spend more in this area to make the position more attractive in the new legal climate.”
The Society for Human Resource Management (SHRM) says that companies should review abortion-related coverage relative to applicable state laws.
Keep in mind that self-insured employers may be able to approach the issue differently than those with fully-insured plans.
“Self-insured employers may have more leeway to provide abortion assistance in states with restrictive laws, depending on how courts interpret the interplay between the federal Employee Retirement Income Security Act (ERISA) and state statutes, benefits advisors have noted,” reported the SHRM.
The Ropes & Gray law firm broke down the issue along the following lines:
“While self-funded employers can continue to offer coverage for abortion services under their group health plans, local access to these services for employees working or residing in states where abortion is prohibited will necessarily be restricted,” said the Ropes and Gray alert. “Fully-insured employers operating in states that prohibit insurance coverage for and access to abortion services will need to consider alternative means if they wish to continue providing assistance for these services.”
The SHRM reported in June after the Supreme Court overturned Roe some companies may “add coverage of travel expenses to obtain medical procedures, including abortions, not available nearby, or to ensure that parental leave and caregiving benefits meet the needs of new mothers who may be single or economically disadvantaged.”
The SHRM said that while some employers were reshaping abortion coverage under their group health plans, others were providing benefits outside of those health plans such as:
“Most health plans don't cover travel expenses, and if they do it's usually to medical centers of excellence that provide high-value services such as cancer care or joint-replacement surgeries,” noted the SHRM.
Other issues that have been raised, according to the SHRM:
Most companies are trying to not take a political stance on this issue but chart a path that keeps them on the right side of changing laws, while meeting the needs of their employees.
"When discussing a sensitive topic like abortion, there is indeed the likelihood someone could get offended or have strong opinions," Lisa Nelson, vice president of employee benefits, compliance and regulatory affairs at the Leavitt Group, told the SHRM. "Try to be matter-of-fact rather than having an opinion."