The next challenge for abortion coverage in employer health plans 

Reproductive health has been central to the employer conversation around enhancing women’s health benefits—and women’s health and wellbeing as a result—for several years now. It’s not uncommon today for large employers to expand fertility and other family forming benefits, as well as benefits and services to support women through menopause. Contraception and, for many women, abortion access are also integral to reproductive health and family planning. Employers didn’t shy away from discussing abortion in the wake of the Supreme Court’s Dobbs decision overturning Roe last summer. Some chose to review plan coverage and work with carriers, third-party administrators (TPAs), and other vendors to shore up abortion access as best they could. But this is about to get more challenging. 

While the Affordable Care Act (ACA) requires most group health plans to cover contraceptives, federal law generally doesn’t require plans to cover abortion unless the pregnant person’s life is at risk. State requirements for abortion coverage in private insured plans varies and continues to evolve as state legislatures take up new bills, some seeking to protect the right to abortion and expand access, and others seeking to further restrict access and punish abortion providers. As it stands for private insured group health plans, at least seven states require abortion coverage, and eleven states restrict it. Even in those states requiring insured plans to cover abortion, compliance can be spotty. And state insurance requirements for abortion—either mandating coverage or restricting it—do not apply to ERISA-covered self-funded plans.

It’s no wonder employers (and their employees) are sometimes confused about their own plans’ abortion coverage. When surveyed shortly after the Supreme Court’s Dobbs decision, 23% of employer-respondents weren’t sure if their group health plan covered abortion. And things may get even more complicated if a federal district court in Texas sides with plaintiffs challenging the US Food and Drug Administration (FDA) approval of the medication used to induce abortion.

Twenty-two years ago, the FDA approved Mifepristone as part of a drug regimen with Misoprostol for inducing pregnancy termination under certain conditions. Both The American College of Obstetrics and Gynecology (ACOG) and the World Health Organization (WHO) support the use of Mifepristone and Misoprostol as a safe and effective drug regimen for pregnancy termination. According to the Guttmacher Institute, by 2021 medication abortions accounted for over half of all abortions in the US. Recent FDA changes to the Risk Evaluation and Mitigation Strategy (REMS) for Mifepristone make abortion medication easier to access now that the pill can be dispensed by certified pharmacies, not just in-person by a certified prescriber in a healthcare setting, as previously required.

Still, confusion abounds about whether, and where, abortion medication is legal. A recent Kaiser Family Foundation poll found that 41% of women ages 18 to 49 are unsure if medication abortion is legal in their state. This is no surprise since at least 16 states have policies in place that affect access to abortion medication and the laws banning abortion in at least 13 states apply to medication abortion just as they apply to surgical abortion.

To add to the confusion, as noted above, a federal district court in Texas could soon put a halt to access to abortion medication for all women in the US, not just women in states banning or restricting abortion. The plaintiffs in the case—faith-based physician organizations and physicians—are challenging the FDA’s approval of Mifepristone, taking issue with the administrative process used by the agency two decades ago, and each progression of the REMS since (Alliance for Hippocratic Medicine v. FDA (N.D. Tex., No. 2:22-cv-223)). They are asking the court to order the FDA to withdraw or suspend approval of Mifepristone. The court’s decision—expected soon—is likely to be appealed, whatever the outcome. Nevertheless, a nationwide injunction, if granted, could potentially stay in place while the appeal plays out (possibly all the way to the Supreme Court). If the drug is pulled from the market, it could take years for it to move through the FDA approval process again.

Employers may want to review plan coverage for abortion (surgical and medical). For medical and/or pharmacy plans covering Mifepristone for medical abortion, consider the following steps in event the drug becomes unavailable:

• Review plan coverage of Misoprostol for pregnancy termination and watch for updated clinical guidance from the ACOG regarding the off-label use of Misoprostol alone for medication abortion, as recommended by the WHO when Mifepristone isn’t available.
  
• Determine if your group health plan carrier, TPA or pharmacy benefit manager (PBM) is prepared to issue a communication to plan members if Mifepristone becomes unavailable.
• Consider if an employee or plan member communication is warranted and what information it might contain.

The bigger question of how employers can support reproductive health and family planning when women do not have access to safe and effective pharmaceuticals is harder to answer. After Dobbs, some employers added or expanded travel and lodging benefits so that women residing in states restricting abortion would have support to travel for an abortion if necessary. Employers may want to consider the following actions to support women's reproductive health if the court in Texas removes Mifepristone from the market:

• Work with carriers and TPAs to ensure that a Misoprostol-only medication abortion regiment is covered under the medical or pharmacy plan.
• In the event of a medication shortage, provide members with navigation and concierge support that can help them identify available surgical abortion providers.
• Revise and communicate the leave policy to ensure members have access to sick time or other paid leave for more invasive medical procedures, like surgical abortion as compared to medical abortion with pills.
• Work with the employee assistance program and any other behavioral health solutions to ensure they are equipped to support women who have experienced anti-abortion harassment or unnecessary medical intervention.
• Educate and inform managers and supervisors about the benefits and policies available to individuals seeking reproductive health care.
• Reduce stigma by holding educational webinars and explicitly communicating services and policies available to members.

As laws continue to change and access to a full range of reproductive healthcare services becomes increasingly dependent on where a plan participant may live, employers should keep close counsel with group health plan and legal advisors in order to strategize women’s healthcare initiatives.