On June 24, 2022, the U.S. Supreme Court issued its decision in Dobbs v. Jackson Women’s Health Organization, which overturned Roe v. Wade and held that the U.S. Constitution does not include a right to abortion. In doing so, the Court “return[ed]” the authority to regulate abortion “to the people and their elected representatives.” As a result, laws in many U.S. states now regulate abortion in ways that were previously unenforceable. Given the potentially significant criminal and civil consequences of violating these laws, employers and employee benefit plans should ensure they are aware of any potentially relevant laws and how those laws might affect their operations and employees.
Employee benefit plan coverage of abortion
For most private employers, the design of an employee benefit plan typically is governed by the Employee Retirement Income Security Act of 1974, as amended (ERISA), and other federal laws. While such laws do not generally require plans to cover abortions, they may (at least to some extent) limit the ability of states to prevent plans from doing so. For example, ERISA broadly preempts state law, which likely prevents states from directly regulating the benefits (including abortion coverage) offered under an employee benefit plan. ERISA preemption does not apply to a plan that is not covered by ERISA (because it is maintained by a church or quasi-governmental entity, for example) and such a plan may not have the same flexibility to provide coverage.
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