Following the historic U.S. Supreme Court decision in Dobbs v. Jackson Women’s Health Organization overturning Roe v. Wade and Planned Parenthood v. Casey, attorneys and legal scholars are anticipating an avalanche of legal and practical issues emanating from the fact that there is no longer a federal constitutional right to obtain an abortion. Vesting individual states with the power to regulate abortion, below are three key issues to consider:
- Childcare and Family Leave
Dobbs leaves open issues related to childcare and family leave. Although women, including those who choose to have an abortion, continue to be afforded workplace protections such as medical leave under the Family Medical Leave Act (FMLA), the opinion does not consider the impact of unpaid maternity leave on the workforce. The FMLA only provides parents with job protection for twelve weeks without guaranteed pay during that time. Childcare is prohibitively expensive for many families and without guaranteed pay, families may experience a decline in their earnings that may ultimately result in workers leaving the workforce. Additionally, women who are balancing their physical and mental health with their economic security and caretaking obligations may feel compelled to return to the workforce prematurely. Either way, families may unexpectedly face the difficult choice between rushing back to work to support their family or not returning at all to avoid mounting childcare costs. As a general matter, however, women who choose to have an abortion can still qualify for medical leave under the FMLA, Pregnancy Discrimination Act (PDA), or Americans with Disabilities Act (ADA).
- Health Insurance Coverage
The Dobbs decision leaves the regulation of abortion services to the various states. Health insurance coverage issues springing from the decision will therefore turn not on where an abortion is performed, but on state laws governing the group or individual plan that would cover the medical expenses of the insured. Group health plans, particularly those sponsored by multi-state employers, may provide coverage under plans issued by insurers where the contract situs is another state. It continues to be true that insurance plans issued in other states may provide different levels of requirements, or none at all, regarding coverage of abortions. States with legislatures disfavoring abortion may go further in prohibiting insurance coverage for abortion care or other healthcare services the state legislatures view with disfavor.
Other group health plans may be provided through self-insured ERISA plans, under which state laws that would otherwise relate to the plan are largely preempted. While it appears that a state law prohibiting coverage of abortions may not survive a challenge on the basis that it is a state law that relates to the self-insured ERISA plan, an exception to ERISA preemption applies to “generally applicable” criminal laws. Many employers have, in the wake of the Dobbs decision, announced policies of reimbursing travel for employees and their dependents to go out-of-state for abortion services. Some states have made “aiding and abetting” an abortion a criminal act. It remains to be seen whether a state will attempt to pursue criminal charges against an employer reimbursing such travel-related costs as “aiding and abetting” an abortion, and therefore argue that the criminal law is saved from the ERISA preemption of state laws.
There are currently more questions than answers concerning the impact of the Dobbs decision on group health plans maintained by employers. Initially, it seems that the greatest challenges in this area will be faced by employers whose plans have historically covered abortions, and who wish to continue to provide this benefit for their employees who live in states that will restrict abortion access in view of Dobbs. Such employers should proceed with caution in this area and, at least, consider: (1) reviewing the provider network in their group health plan and expanding it, as necessary, to provide reimbursement for services provided by out-of-state and currently out-of-network providers of abortion services; (2) if feasible to do so, changing from an insured group health plan to a self-insured plan not subject to the restrictions imposed on a carrier to pay for abortion services performed in a state in which such services could not be covered under an insured plan.
Abortion has long been a bioethics topic that is polarizing and divisive. The bioethical analysis is built upon four well-established principles: (1) respect for a patient’s autonomy; (2) nonmaleficence or the “do no harm” concept; (3) beneficence involving providing helpful care; and (4) justice. While vigorous debate of all these principles is likely to resume in light of Dobbs, principles of “justice” present a particularly compelling concern. A significant component of a “justice” analysis involves an assessment of the fair distribution of benefits and burdens. This is sometimes referred to as “health equity,” which the Centers for Disease Control and Prevention (CDC) defines as a fair and just opportunity to attain their highest level of health. The CDC has recognized that achieving “health equity” requires: (1) focused and ongoing societal efforts to address historical and contemporary injustices; (2) overcoming economic, social, and other obstacles to health and healthcare; and (3) eliminating preventable health disparities.
Without access to legal abortions, the death rate linked to pregnancy and childbirth is likely to increase. Minority groups have made significant use of abortion services and losing access to abortion in their home state is likely to have a disproportionate impact on minority groups living in those states. Low-income families could also be hard hit by eliminating access to abortion services because of the expenses involved in traveling to a state where abortion services are legal and available. Furthermore, the extra-territorial enforcement of laws implicates not only the principle of justice but also infringes the constitutional right of interstate travel first recognized in Shapiro v. Thompson, 349 U.S. 618 (1969).