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June 24, 2022

The Supreme Court overturned Roe v. Wade today in a 6-3 decision. The Court’s full, 215-page opinion is available here. Our team is working through the details and impact, but we do know that the court has completely reversed Roe, meaning there are no longer constitutional abortion rights. Abortion rights now sit squarely with state governments across the country, leaving many employers left to navigate various complicated state laws impacting their employee benefit programs that offer abortion-related healthcare. At least 13 states have “springing” laws that will outlaw abortions in 30 days.

The Council
 is working closely with the employer community to navigate the various state restrictions, and we will keep you abreast of how benefit programs can best navigate this new terrain. Our understanding is that most group health coverage does not cover elective abortions. State laws generally have exceptions when the life of the mother is in danger, but not if the pregnancy is the result of a rape or incest, so there is a possibility that state law restrictions could impede on plans that cover abortions in that circumstance.

The biggest benefits questions will revolve around employers who want to pay for their employees to travel to states where abortion is still legal. The primary issues are tax related – i.e. how can you provide this benefit on a pre-tax basis? There is IRS precedent that clarifies that such travel expenses for elective abortions are permissible “medical” expenses if properly provided. Still, many questions remain. What is a permissible, pre-tax mechanism for an employer to use if it wants to provide such a benefit? Direct pay? HRA? Employee assistance plan?

There will also be questions about a state’s ability to bar its citizens from getting abortions in other jurisdictions, and whether or not they can punish a third party (like an employer or a group health plan) that assists an individual in accessing abortion services in states in which it is permissible.

The Council’s legal team will continue to sort through these issues and work with you on how best to communicate with your clients on their options. Stay tuned for more information in the coming weeks.

The Government Affairs Team
Joel Wood, Senior Vice President, Government Affairs
Joel Kopperud, Vice President, Government Affairs
Blaire Bartlett, Director, Government Affairs
Katie Oberkircher, Director, Health Policy & Strategy