The U.S. Supreme Court issued its decision in Dobbs v. Jackson Women’s Health Organization and concluded that the U.S. Constitution does not confer a right to abortion, overturning a long-standing precedent established by the court’s decision in Roe v. Wade in 1972. With the decision on how to regulate abortion left to the states, a patchwork of laws is emerging as some states are moving to ban or limit abortion while others are creating additional protections for people who perform or obtain the procedure. It is expected that abortion could be banned or restricted in about half the states. In fact, 13 states had “trigger” laws in place before the ruling, designed to ban or restrict abortion as soon as Roe was overturned. Some of those bans have already gone into effect, while others are likely to take effect in a matter of days or weeks. In addition, both Texas and Oklahoma have already enacted laws that enable private citizens to bring a civil action against a “person” for aiding and abetting an individual in obtaining a prohibited abortion. Additional states may consider adding these laws, and employers should monitor the impact of any such laws (and their response to such laws) with their legal counsel.
The primary and immediate impact of the Supreme Court’s ruling is on the availability or non-availability of abortion services for women across the U.S., effective as of the date of the ruling, which is itself hugely controversial. For employer health plans, providing coverage for services that are legal in some states and illegal in others will be exceedingly complex, to say the least, and fraught with any number of regulatory, legal, tax, reputational, workforce and social risks. The details noted above represent only a few of the complexities involved. Consultation with legal and tax advisors on the implications of the Dobbs ruling for an employer’s health plan is highly recommended.
