June 24, 2022
On June 24, 2022, The U.S. Supreme Court issued its final decision in Dobbs v. Jackson Women’s Health Organization. This decision was foreshadowed in a leaked draft opinion in May 2022 and reversed the precedent set by Roe v. Wade nearly 50 years ago that provided certain protections for access to abortion at the federal level. The impact will be to revert control of abortion access to each state and to no longer apply a uniform federal standard of accessibility. The decision is effective immediately.
Many large employer plan sponsors have been actively reviewing plan designs and making, or considering whether to make changes to, health plans or other programs. While ERISA plans are able to rely on ERISA preemption to provide consistent benefits, plan sponsors should continue to work with their consultants and legal counsel to ensure existing or updated designs are well-founded in ERISA principles to help avoid state-level disputes.
Even if plans are crafted with the intent of ERISA protection, it is uncertain how assertive some states may be in alleging that employers have acted inappropriately. As we described in our prior What Your CEO is Reading article from May 11, 2022, it is expected that at least 23 states will have some limitation or prohibition on abortion access. Additionally, states continue to pass new legislation with potential implications for plan participants seeking abortion services as well as for plan sponsors that pay for or otherwise support such services.
For at least the short-term, we expect most employers and plans will need to monitor and react to the evolving state legislative landscape. This may result in a series of plan or program changes and corresponding updates to plan documents and participant communications. Employers may want to set overarching employee and participant expectation upfront in anticipation of short-term volatility in some plan or program offerings.
Business Group on Health will continue to monitor these and related matters, and provide updates on future developments. For any questions or comments, please feel free to contact Garrett Hohimer, Director, Policy & Advocacy at firstname.lastname@example.org.
We provide this material for informational purposes only; it is not a substitute for legal advice.