Will health insurers cover abortion after the Supreme Court decision? Here’s what we know.

“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 34 states and the District of Columbia allow Medicaid to cover abortions only in cases of rape, incest, or endangerment of the woman’s life due to Hyde Amendment, which limits federal funding for the proceedings, according to the Kaiser Family Foundation. The remaining 16 states use their own money to provide broader Medicaid abortion coverage.

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

About 10 states have actually abortion prohibited since Friday’s Supreme Court ruling. And 26 states are certain or likely to ban the procedure, according to Guttmacher Institutea research and policy organization that supports abortion rights.
Currently no status prohibits its residents from having abortions in other states where it is legal. But Republican lawmakers in Missouri have tried to include it in legislation, with no success so far. Other states could follow suit, experts say.
Liberal Supreme Court Justices aware of this potential in their dissent, though Judge Brett Kavanaugh tried to allay those concerns in his concurring opinion, saying states cannot ban their residents from traveling elsewhere for abortions.
Insurers and employers may also be concerned about state laws that may hold liable those who aid and abet an abortion – which is a provision of the Texas Abortion Law which was adopted last year. This could potentially affect abortion coverage across state lines.

“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.”

Already, Citigroup and Lyft have drawn the ire of some GOP lawmakers in Texas for providing travel benefits for abortion procedures. A Republican state representative in Texas said earlier this year that he would introduce legislation prohibiting local governments from doing business with any company that provides abortion coverage or pays for abortion-related expenses.

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.

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