“It will depend on the legal language,” said Doniella Pliss, director of the health insurance rating team at AM Best, a credit rating agency. “For an insurance company, it’s not an ideological question. … They will strictly abide by the law.”
Another important consideration is whether employers offer self-insured coverage, which is governed by federal regulations, or fully insured policies, which must comply with state rules. In the former, companies pay the health costs of their workers, while in the latter, they conclude contracts with state-approved insurers to cover claims. Many large employers are self-insured.
Abortion coverage by health insurance has long come up against many limitations.
Some 26 states prohibit policies sold on their Affordable Care Act exchanges from covering abortion, with a few exceptions.
As for employment-based plans, 11 states have laws that prohibit abortion benefits, with some exceptions, in policies for small businesses and large employers that states regulate. Some states may allow the purchase of abortion coverage as an endorsement, 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 Employees Retirement Income Security Act of 1974, known as ERISA, contains no limitations or requirements for abortion coverage.
But the federal pregnancy discrimination law requires all employers who offer health insurance and who have 15 or more workers to cover abortion if the woman’s life is in danger.
Fallout from the Supreme Court decision
“Is the blanket considered a help? said Alina Salganicoff, director of women’s health policy at Kaiser. “Insurers are really going to have to look into this.”
Many insurers and employers will be “cautious”, she said. “There’s a lot of activity right now, trying to figure that out.”
It is also possible that ERISA does not preempt certain state laws, such as criminal laws.
Another question will be whether states can ban medical abortion coverage for their residents in self-insured employer plans, said Katy Johnson, senior health policy advocate at the American Benefits Council, an association career for large employers.
“It’s really a new situation here,” she said, noting that many council members offer abortion benefits. “Looks like nothing is on the table.”
So far, Johnson hasn’t heard of any employers withdrawing abortion coverage, including across state lines. And a slew of companies have already said they will pay for abortions and out-of-state travel services.
But that doesn’t mean they won’t face a backlash in states that ban the procedure.
“I would expect some states to adopt fairly broad interpretations of the type of behavior covered by their own laws,” Johnson said.