Will your health plan pay for an abortion now that the Supreme Court has overturned Roe v. wade?
Even before the June 24 ruling, insurance coverage for abortion varied widely. Now the issue is even more complex as states set varying rules — about half are expected to limit or ban abortion in almost all circumstances.
Abortion is legal in Pennsylvania up to 24 weeks of pregnancy. New Jersey codified the right to abortion and in June passed legislation establishing the state as a “safe haven” for out-of-state patients.
To be clear, the question of whether an insurance plan covers abortion is not the same as whether abortion is allowed in a state. Coverage issues are more complicated and governed by a wide variety of factors, including the level of abortion access a state allows.
How dense a thicket is it? Abortion may be covered by a health plan, but if no providers are available, patients don’t have access. People with insurance that does not cover abortion can still get one if it’s available in their state or they can afford to travel and pay out-of-pocket. Also unclear is whether states that restrict abortion will have legal authority to target abortion coverage in employer plans.
The issues will likely be before the courts for years to come.
“States will pass laws, there will be some conflict, and then it goes to the courts,” said Erin Fuse Brown, director of the Center for Law, Health & Society at the Georgia State University College of Law. “It could be a while.”
In the meantime, here are answers to three common questions.
The simple answer is “no.”
Whether they do is more complicated.
Some job-based health plans cover elective abortions. Patients can search their plan documents or call their insurers directly to check.
Coverage is more likely in plans offered by self-insured employers because a federal pensions law generally preempts state regulation of those health plans. Self-funded employers, which tend to be the larger ones, pay the medical bills.
Still, millions of Americans work for smaller employers, which tend to buy plans directly from health insurers, which then pay the medical bills. Those plans, known as “fully insured,” are subject to state laws, whose approaches to abortion coverage have long varied.
Eleven states bar those private plans from covering abortion in most circumstances, according to the Kaiser Family Foundation, although some of the states allow consumers to purchase an insurance rider that would cover abortion costs.
If you’re not sure what type of health plan you have, ask the administrators.
“There is no way to tell from the face of your insurance card if you are fully insured or self-funded,” Fuse Brown said.
For the more than 14 million Americans who buy their coverage through the Affordable Care Act marketplaces, their state of residence is key.
Twenty-six states, including Pennsylvania, restrict abortion coverage in ACA plans, while seven states require it as a benefit plan, according to KFF. New Jersey is among the dozen states that does not ban abortion coverage in ACA plans, and has at least one plan offering such coverage.
The rules for Medicaid, the federal-state health program for people with low incomes, also vary. Thirty-four states, including Pennsylvania, and the District of Columbia follow the so-called Hyde Amendment, which bars federal funds from paying for abortions, except in cases of rape or incest or to save the life of the mother. New Jersey is among a minority of states where Medicaid pays for all or most medically necessary abortions, according to KFF.
Insurance policies must 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 of 1978 and other rules, Fuse Brown said, “pregnancy and prenatal care, including high-risk pregnancies, and obstetric care in general is required to be covered.”
In an ectopic pregnancy — when a fertilized egg implants outside the uterus — the embryo is not viable, and the condition is generally life-threatening to the mother without medical treatment.
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. That means physicians in abortion-ban states may have to weigh the pregnant person’s medical risk against possible legal ramifications.
“This is less of a coverage question and more of a question of whether providers in the states that ban abortion are going to provide the care,” said Katie Keitha research faculty member at the Center on Health Insurance Reforms at Georgetown University.
In recent weeks, many large employers — including Microsoft, Bank of America, Disney, and Netflix — have said they will help pay travel costs so workers or other beneficiaries in states with bans can get an abortion elsewhere.
But it isn’t as straightforward as it sounds. Employers will have to figure out whether workers will access this benefit through the health plan or another reimbursement method. Protecting privacy, too, may be an issue. Some consultants also said employers will need to consider whether their travel reimbursement benefit conflicts with other rules.
If an employer, for example, covers travel for abortion procedures but not for an eating disorder clinic, does that violate the Mental Health Parity and Addiction Equity Act? If a plan has no providers willing or able to do abortions, does it violate any state or federal network adequacy rules?
Lawmakers need to think about these conflicts, said Jessica Waltman, vice president for compliance at employee benefits company MZQ Consulting. “They could be putting all the employer group plans in their state in a very precarious position if that state law would prohibit them from complying with federal law,” she said, particularly if they restrict access to benefits called for in 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, said Rene Thornea principal at Jackson Lewis, where she oversees litigation that involves self-insured firms.
Also uncertain is whether state laws will take aim at insurers, employers, or others that offer benefits, including travel or televisits, for abortion services.
Laws that restrict abortion, Thorne wrote in a white paper for clients, generally apply to the medical provider and sometimes those who “aid or abet” the abortion. Some states, including Texas, allow private citizens to sue for $10,000 anyone who provides an illegal abortion or helps a person access an abortion.
Never have health plans, their employer sponsors, and plan administrators been in a position where they could face criminal liability in connection with a benefit plan, said Seth Perrettaa principal at the Groom Law Group, which advises employers.
“We are in uncharted territory here,” he said.
Kaiser Health News is a national newsroom that covers health issues.