ABORTION BENEFITS with 15 or more employees , including state and local governments .
Pregnancy Discrimination Act
The Pregnancy Discrimination Act ( PDA ) protects women from being fired for having an abortion or contemplating having an abortion . It also prohibits adverse employment actions against an employee based on their decision not to have an abortion . For example , it would be unlawful for a manager to pressure an employee to have or not to have an abortion in order to retain their job , get better assignments , or stay on a path for advancement .
Insurance Coverage of Abortion
The PDA makes clear that if an employer provides health insurance benefits , it is not required to pay for health insurance coverage of abortion , except where the life of the mother would be endangered if the fetus were carried to term or medical complications have arisen from an abortion . If complications arise during the course of an abortion , the health insurance plan is required to pay the costs attributable to those complications .
In addition , an employer ’ s health plan is permitted to provide health coverage for an abortion , although not required . If the plan covers the costs of abortion , it must do so in the same manner and to the same degree as it covers other medical conditions . Potential problems could arise , for example , if the plan covers abortions but on different terms and conditions than those that apply to other medical conditions , or if the plan provides comprehensive medical benefits but does not cover abortion when the life of the mother would be endangered if the fetus were carried to term .
Affordable Care Act
The Affordable Care Act ( ACA ) does not require abortion coverage beyond what is already required under Title VII , as amended by the PDA . According to Executive Order 13535 , the ACA was intended to maintain the abortionrelated restrictions found in existing law (“ Hyde Amendment ” restrictions ) at the time of the ACA ’ s enactment . Under the ACA , federal laws to protect conscience ( such as the Church Amendment and the Weldon Amendment ) remain intact . New protections prohibit discrimination against health care facilities and health care providers because of an unwillingness to provide , pay for , provide coverage of , or refer for abortions .
STATE LAW
While there is no specific mandate or ban on covering abortion costs at the federal level , many states have passed their own regulations regarding abortion coverage .
IN THE WAKE OF THE
DOBBS DECISION , MORE STATES ARE LIKELY TO BAN OR RESTRICT ABORTION COVERAGE UNDER ALL HEALTH PLANS .
The scope of benefits that may be provided by a health plan will depend on the specific restrictions that are imposed at the state level . This section outlines key state law issues to consider .
Extraterritorial Jurisdiction
In states like Texas and Oklahoma that bar “ aiding and abetting ” the procurement of illegal abortions , it remains to be seen how these laws will apply to employers providing benefits for their employees to receive legal out-of-state abortions . While the plain text of the laws state that paying for or reimbursing the costs of abortion “ through insurance or otherwise ” is prohibited , it is unclear whether , and to what extent , this would apply to coverage of lawful out-of-state procedures . This type of jurisdictional issue will likely need to be decided in court .
ERISA Preemption
In general , self-insured health plans are not subject to state insurance laws because of the preemption clause of the Employee Retirement Income Security Act of 1974 ( ERISA ). If a self-insured plan is not subject to ERISA , ERISA ’ s preemption clause does not apply , and the plan may be subject to state laws . Similarly , state insurance laws generally apply to ERISAcovered fully insured health plans .
ERISA preemption could potentially be used as a defense for self-insured health plans providing abortion benefits in states that regulate abortion . However , it is unclear whether a state law criminalizing the practice — or state laws that prohibit persons from “ aiding and abetting ” the procurement of illegal abortions — could be used against employers providing abortion benefits through self-insured , ERISA-covered plans .
ACTION STEPS
Employers may need to closely analyze any abortion benefit offered under their group health plans to ensure full compliance with applicable restrictions . Carriers and third-party administrators may be able to provide information regarding specific plan provisions . Depending on the situation , employers may also wish to consult with an employee benefits attorney regarding compliance . +
BY : BARRY E . FIELDS VICE PRESIDENT OF EMPLOYEE BENEFITS JGS INSURANCE , A BALDWIN RISK PARTNER
Barry Fields has over 30 years of employee benefits experience advising clients in a wide range of industries , professional and industrial , public and private , throughout the United States and worldwide .
Barry specializes in providing full-service benefits consulting to clients including program design , compliance , plan funding , underwriting , wellness programs , employee communications , benefits administration , employee advocacy and the use of effective strategies in benefits management .
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