Last year, the U.S. Supreme Court’s decision in Dobbs v. Jackson overturned prior precedent that provided constitutional protection of abortion rights. See our blog, Supreme Court Decision Overturns Roe vs. Wade, Impact to Employer Benefit Plans, for background and further information. As a result, states now have the power to pass laws banning or restricting related reproductive healthcare services, which can impact group health plan coverage and influence benefit plan options. This blog highlights recent litigation, rulemaking, and other actions that have shaped the legal landscape surrounding group health plan coverage options.

Medication Abortion

Since the Dobbs vs. Jackson decision, there has been greater focus on the regulation of medication abortion (i.e., a pregnancy termination method via prescription drugs). Currently, the scope of federal and state authority to regulate medication abortion is the subject of ongoing litigation.

As background, the U.S. Food and Drug Administration (FDA) recently announced changes to mifepristone protocol, which is a two-drug regimen used to induce abortion. The updated protocol asserts that mifepristone no longer needs to be dispensed in-person by a health care provider; that pharmacies can become certified to dispense mifepristone; and that mifepristone can now be sent by mail. Prior to this change, mifepristone was generally treated as a medical benefit (as it was required to be dispensed in-person during a visit with a health care provider). Many group health plan sponsors have begun exploring adding mifepristone to the plan’s pharmacy benefit, since it no longer had to be dispensed in-person by a health care provider. 

In April 2023, the United States Supreme Court stayed a federal district court order that challenged the FDA’s approval of mifepristone.  For now, group health plans can continue to cover mifepristone (if received in a state where legal) per the current FDA rules, until a final decision is reached on the merits of the case. However, with the uncertainty about the applicable dispensing rules, it is unclear whether pharmacies will be able to dispense mifepristone. In addition, there are also challenges to certain state laws imposing “extra” requirements to access mifepristone.

Telehealth and Abortion Services

If permitted by state law, telehealth can be used to access medication abortion. While this was also true prior to Dobbs v. Jackson, there appears to be increased interest in telehealth to potentially expand access to abortion, especially in areas with limited clinicians who provide abortion care or for those who are unable to travel to a clinic, described further in a recent Kaiser Family Foundation study, The Availability and Use of Medication Abortion.

Importantly, as state action impacts individuals’ access to abortion related services, this influences employer plan sponsors and their coverage options. For example, fully insured plans must comply with the state law where the policy is issued. For states that have restrictions in place regarding abortion coverage, fully insured plans will be limited in offering such coverage. Alternatively, self-insured plans are not subject to most state insurance laws. This means that employers have more control over the services offered under the plan and can generally choose to offer (or not offer) coverage for abortion services or limit the coverage to specific circumstances. Guidance from counsel is best to assist if and when questions arise regarding state law impact on employers and their group health plans. See our blog, Supreme Court Decision Overturns Roe vs. Wade, Impact to Employer Benefit Plans, for additional details regarding group health plan impact.

Notice of Proposed Rule Making (NPRM)

Earlier this year, the Department of Health and Human Services (HHS) issued a Notice of Proposed Rule Making (NPRM) to support HIPAA compliance by prohibiting the use or disclosure of protected health information (PHI) to investigate or prosecute patients, providers, and others involved in legal reproductive health care, including abortion care. The intent of the proposed rulemaking is to protect patient-provider confidentiality and prevent private medical records from being used against individuals for seeking, obtaining, providing, or facilitating lawful reproductive health care. This is consistent with Executive Order 14076, which directed HHS to consider ways to strengthen the protection of sensitive information related to reproductive health care services.

Importantly, while HHS is reviewing this rulemaking, the current Privacy Rule remains in effect, which establishes requirements regarding the use, disclosure, and protection of PHI by covered entities. Currently, without an individual’s signed authorization, covered entities can only use or disclose PHI as required by law, for law enforcement purposes, or to avert a serious threat to health or safety, explained further in guidance provided by the Office of Civil Rights (OCR).

Employer Takeaways

In light of the above, employers may want to monitor:

  • State action to determine whether their employee population may be affected; and
  • The status of medication abortion and how this may affect benefits being offered under an employer group health plan (including pharmacy benefits).

Importantly, employers interested in implementing or changing benefit options should assess the risk of each option with legal counsel.

Additional Resources

The information and materials on this blog are provided for informational purposes only and are not intended to constitute legal or tax advice. Information provided in this blog may not reflect the most current legal developments and may vary by jurisdiction. The content on this blog is for general informational purposes only and does not apply to any particular facts or circumstances. The use of this blog does not in any way establish an attorney-client relationship, nor should any such relationship be implied, and the contents do not constitute legal or tax advice. If you require legal or tax advice, please consult with a licensed attorney or tax professional in your jurisdiction. The contributing authors expressly disclaim all liability to any persons or entities with respect to any action or inaction based on the contents of this blog. © 2023 Sequoia. All Rights Reserved. 

Diane Cross — Diane is a Client Compliance Consultant for Sequoia, where she works with our clients to optimize and streamline benefits compliance. In her free time, Diane enjoys spending time with her family, live music, and cycling.