Consider these health benefits in the wake of the Dobbs decision.

• Author: Gregory, Eric W.

On June 24, 2022, in Dobbs v. Jackson Women's Health Organization, the U.S. Supreme Court ruled that the U.S. constitution does not protect the right to obtain an abortion. Employers now must carefully consider the impact of the ruling on their health and welfare benefits plans. Plan sponsors must review state law changes, prepare changes to their plan documents, consider travel and lodging benefits, and analyze privacy and safety concerns related to the Dobbs decision.

As a first step, I have encouraged employers to take a census of the states where their employees work and reside to determine applicable laws. This has become more of a challenge in the era of remote work.

States have widely varying laws concerning abortion that continue to evolve, including complete and partial bans. Employers should review their plan documents to ensure that exclusions for abortion-related services are narrowly tailored to exclude illegal procedures but not exclude intended coverage.

State laws that relate to employee benefits are preempted (in other words, displaced) by the Employee Retirement Income Security Act of 1974 (ERISA), and there is a good argument that a self-funded employer group health plan would preempt state civil statutes regarding abortion. Insured plans must comply with state laws where the policy is issued. In any case, criminal laws that might prohibit abortion services will prevent participants from obtaining abortion services in those states.

Many employers are exploring or have already implemented some kind of travel benefit for employees seeking an abortion. In my experience, most employers who are implement ing such a benefit are doing so in a way that is neutral as to eligibility (i.e., not just women) and that covers a...