“States will pass laws, there will be disputes, and then it will go to court,” said Erin Fuse Brown, director of the Center for Law, Health & Society at the Georgia State University College of Law. “It might take a while.”
In the meantime, here are the answers to three common questions.
1. Are health plans—or employers—required to provide coverage for elective abortions?
The simple answer is no.”
“There is no law requiring that a health plan, employer-based or anything else, cover an elective abortion,” Fuse Brown said.
Whether this is the case is more complicated.
Some employment-based health plans cover elective abortions. Patients can search for their plan documents or call their insurer directly to verify.
Coverage is more likely in plans offered by self-insured employers because federal pension law typically overrides state regulation of these health plans. Self-funded employers, which tend to be the largest, pay for medical costs, although they usually hire third parties, sometimes health insurers, to handle claims and administrative work.
Yet millions of Americans work for smaller employers, who tend to buy plans directly from health insurers, who then pay the medical bills. These plans, called “fully insured,” are subject to state laws, whose approaches to abortion coverage have long varied.
eleven states prohibit these private plans to cover abortion in most cases, according to the Kaiser Family Foundation, although some states allow consumers to purchase an insurance endorsement that would cover abortion costs.
If you’re not sure what type of health plan you have, ask the administrators.
“There’s no way to tell from the face of your insurance card if you’re fully insured or self-funded,” Fuse Brown said.
For the more than 14 million Americans who buy their coverage through Affordable Care Act markets, their state of residence is critical.
Twenty-six states restrict abortion coverage in ACA plans, while seven states require it as a plan benefit, according to KFF. These states are California, Illinois, Maine, Maryland, New York, Oregon, and Washington.
The rules for Medicaid, the federal state health program for low-income people, also vary. Thirty-four states and the District of Columbia follow the so-called Hyde Amendment, which prohibits federal funds from paying for abortions except for rape or incest or to save the life of the mother, although some states allow coverage for other medical conditions. necessary abortions.
For all these reasons, it is not surprising that research published in the journal Health Affairs in April noted that patients pay out of pocket for the majority of abortions — 69% in one study. The researchers found that the median cost of a medical abortion was $560, and abortion procedures ranged from a median of $575 in the first trimester to $895 in the second.
2. What about coverage for pregnancy-related complications that require treatment similar to abortion?
Insurance policies should cover care for essential health services, including medically necessary pregnancy care and abortion when carrying a pregnancy to term would endanger a patient’s life.
Under the Pregnancy Discrimination Act 1978 and other rules, said Fuse Brown, “pregnancy and prenatal care, including high-risk pregnancies, and obstetric care in general should be covered.”
In an ectopic pregnancy – when a fertilized egg implants outside the uterus – the embryo is not viable and the condition is usually life-threatening to the mother without medical treatment. Many other scenarios could come into play, including situations where a woman miscarries but not all tissue is expelled, which can lead to a dangerous infection.
Although all state laws that currently restrict abortion include an exception to save the life of the mother, what constitutes a life-threatening scenario is not always clear. This means that doctors in abortion-banning states may have to weigh the pregnant person’s medical risk against possible legal ramifications.
“It’s less about coverage and more about whether providers in states that ban abortion are going to provide the care,” said Katie Keith, research faculty member at the Center on Health Insurance Reforms at Georgetown University. “All of these laws are designed to chill the behavior, to make it so unappealing or scary to providers that they prevent them from doing it at all.”
3. Can residents of states where abortion is illegal receive out-of-state coverage or travel assistance?
Over the past few weeks, many large employers – including Microsoft, Bank of America, Disney and Netflix – have said they will be rolling out programs to help with travel expenses so that workers or other beneficiaries in prohibiting states can travel for abortions elsewhere.
But it’s not as simple as it seems. Employers will need to determine whether workers access this benefit through the health plan or other method of reimbursement. Protection of private life, too, can be a problem. Some consultants also said employers will need to consider whether their travel reimbursement conflicts with other rules. If an employer, for example, covers travel costs for abortion procedures but not for an eating disorder clinic, does this violate the Mental Health Parity and Addiction Equity Act? If a plan does not have providers willing or able to perform abortions, does it violate state or federal network adequacy rules?
Lawmakers need to think about these conflicts, said Jessica Waltman, vice president of compliance at benefits company MZQ Consulting. “They could put all employer-sponsored group plans in their state in a very precarious position if this state law prohibits them from complying with federal law,” she said, especially if they restrict access to benefits under the Pregnancy Discrimination Act.
There are other potential conflicts if an employer is in a state that allows abortion but a worker is in a state that restricts it. “If I’m an Oregon-based company, my insurance plan should provide coverage for abortion, but what do I do about an employee in Oklahoma?” I don’t know the answer,” said Rene Thornedirector at Jackson Lewis, where she oversees litigation involving self-insured businesses.
It’s also unclear whether state laws will target insurers, employers or others who provide benefits, including travel or televisiting, for abortion services.
Laws that restrict abortion, Thorne wrote in a white paper for customers, generally apply to the medical provider and sometimes to those who “aid or abet” abortion. Some states, including Texas, allow private citizens to sue for $10,000 anyone who offers an illegal abortion or helps someone access an abortion.
Whether these laws are applied to employers or insurers will undoubtedly end up in court.
“We are in uncharted territory here, as we have never been in a situation where plans, as well as their sponsoring employers and those who administer the plans, could face criminal liability in connection with a plan benefit,” said Seth Perettadirector of the Groom Law Group, which advises employers.
The answers won’t come soon, but “there will be so much litigation about this,” Thorne said.
KHN (Kaiser Health News) is a national newsroom that produces in-depth journalism on health issues. KHN is one of the three main operating programs of KFF (Kaiser Family Foundation), a non-profit organization providing information on health issues.