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Supreme Court Rules on Dobbs Case

All, Employee Benefits

On June 24, 2022, the U.S. Supreme Court issued a decision in Dobbs v. Jackson Women’s Health Organization, a case challenging Mississippi’s Gestation Age Act, which allowed for abortions only in cases of medical emergency or severe fetal abnormality after 15 weeks of gestation.

The Court’s majority held that the United States Constitution does not “confer a right to abortion” and the regulation of abortion is “returned to the people and their elected representatives”. This decision puts the legality of abortion services in the hands of state governments.

The question is how this decision will impact employers and particularly their offer of employee benefits.

Background

While legally permissible, a majority of group health plans have excluded abortion services from coverage or allowed for coverage only in cases of medical emergency. You can view your plan coverage and exclusions in your group health plan documents.

Abortion services and travel for those services may be included in the 213(d) medical expenses that are allowed for reimbursement via a tax-exempt medical savings plan (flexible spending accounts (FSAs), health savings accounts (HSAs) and health reimbursement arrangements (HRAs). Employers are encouraged to contact their current third party administrator for confirmation.

Impact on offers of employee benefits

As employers review their plans to meet the goals of their benefit plans, it will be important to understand the pertinent laws in the states in which they operate. This will be vital as employers look to ensure they continue to meet their compliance obligations.

Employers may want to provide benefits in the form of monetary support for employees who may need to travel to obtain abortion services. In those cases, employers should work with their legal counsel to make sure they do so in a non-discriminatory fashion.

Government

We expect federal agencies to provide guidance on this topic in the coming weeks and months. The Department of Justice has already released an opinion that states cannot ban medication that can be used to bring about an abortion.

State governments are indicating future legislation to enact or re-affirm their existing laws regarding abortion services.

Key Takeaway

This is an evolving issue and there will be multiple compliance considerations for employers. Not only will employers need to understand the laws in the states that they offer health insurance, but they should monitor any legal guidance from the federal government.

If you have any questions or concerns about the ramifications of this decision on your plan, we encourage employers to reach out to their health insurance carrier, third party administrator or your M3 Account Team.

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