“It would depend upon the legal language,” said Doniella Pliss, a director on the health insurance ratings team at AM Best, a credit rating agency. “For an insurance company, that is not an ideological issue. … They will go strictly by what the law is.”
Another important element is whether employers offer self-insured coverage, which is governed by federal regulation, or fully insured policies, which must comply with state rules. In the former, companies pay their workers’ health care costs, while in the latter, they contract with state-licensed insurers to cover the claims. Many large employers are self-insured.
Health insurance coverage of abortion has long faced many limitations.
Some 26 states prohibit policies sold on their Affordable Care Act exchanges from covering abortion, with certain exceptions.
When it comes to job-based plans, 11 states have laws that bar abortion benefits, with certain exceptions, in small business and large employer policies that the states regulate. Some states may allow abortion coverage to be purchased as a rider, according to Kaiser.
Seven states have laws that require all of their fully insured employer plans, as well as Obamacare and other individual market policies, to provide abortion benefits.
The federal law that regulates self-insured plans, the Employee Retirement Income Security Act of 1974, known as ERISA, does not contain any abortion coverage limitations or requirements.
But the federal Pregnancy Discrimination Act requires all employers that offer health insurance and have 15 or more workers to cover abortion if the woman’s life is at risk.
Fallout from the Supreme Court decision
“Is coverage considered aiding?” said Alina Salganicoff, Kaiser’s director of women’s health policy. “Insurers are really going to have to look at that.”
Many insurers and employers will be “cautious,” she said. “There’s a lot of activity right now, trying to figure this out.”
It’s also possible that ERISA would not preempt certain state laws, such as criminal laws.
Another question will be whether states can bar coverage of medication abortions for their residents in self-insured employer plans, said Katy Johnson, senior counsel for health policy at the American Benefits Council, a trade association for primarily large employers.
“This is really a novel situation here,” she said, noting that many of the council’s members offer abortion benefits. “Seems like nothing’s off the table.”
So far, Johnson has not heard of any employers pulling back on their abortion coverage, including across state lines. And a slew of companies have already declared that they will pay for out-of-state abortions and travel services.
But that doesn’t mean they won’t face blowback in states that are banning the procedure.
“I would expect some states to take some pretty broad interpretations of the kind of behavior that their own laws cover,” Johnson said.
