The United States Supreme Court’s decision in June overturning Roe v Wade was a major factor influencing the outcome of the US midterm elections. Data shows the abortion issue disproportionately motivated democratic voters, first-time and younger voters, and women under the age of 50, both nationally and in key states. It helps explain the Democrats stronger-than-expected performance as they held on to a Senate majority.
This is research by KFF which shows around 4 in 10 voters who were polled said the Roe v Wade case was a factor in their vote and had a major impact on their decision to turn out to vote. David Shor, a Democratic data analyst, told the Guardian that abortion had been ‘absolutely instrumental’ in Democrats’ successes this cycle. He said abortion had previously been ‘a pretty neutral issue’ Democrats but following the Supreme Court’s ruling it has ‘suddenly became the single best issue for Democrats.’
A reminder. Back in June the United States Supreme Court gave its ruling in a case called Dobbs v. Jackson holding that the Constitution of the United States does not confer a right to abortion. The ruling overturns Roe v Wade, the previous authority dating back to 1973, and returns the issue of abortion to individual states. The result is abortion has become illegal in several states while continuing to be available in others.
One of the central issues here is healthcare for women and it raises a number of immediate issues for employers, particularly for their group health plans. So, let’s get a view on what the ruling means and its impact on those plans. Juliana Reno is a lawyer with US law firm Venable – she heads up their employee benefits practice – and earlier she joined me by video-link from New York to discuss the case:
Juliana Reno: “The situation with state law right now is that states can prohibit abortion, they can allow abortion, or anything in between. So, some states right now have a ban on abortion after a certain number of weeks of pregnancy. Some have bans that are related not to time, but to heartbeats, things like that. So we get we've got the whole range of states and, of course, legislatures can change their laws at any time so one of the big unknown questions is how are the states going to change and redevelop what they're doing?
Joe Glavina: “So how does this affect health plans, Juliana? I imagine you've been very busy fielding questions from your clients on this.”
Juliana Reno: “So, the main question for health plans is if you have a health plan that covers abortion, right, so let's say that somebody is enrolled in a health plan, they're in a state that prohibits abortion so even though the health plan covers it, they can't get one in that state. So now that person is going to travel to another state where abortion is legal and the question is, is the health plan going to cover the abortion? Are they going to pay for the abortion procedure because it was legal in the state where it was performed or are they not cover it because it was illegal in the state of residence? I believe that most plans, most insurance companies, and most self-funded plans, are going to cover that abortion, although that's not 100%. I have been advising clients to contact their third-party administrators, their insurance companies, and ask them. Just say, what are you going to do here?”
Joe Glavina: “In your article on this you say companies cannot simply amend their corporate travel reimbursement policies. Why is that?”
Juliana Reno: “Well, so we've jumped a step, okay. So, the first question is whether you can pay for the abortion. The next question is, can I pay for the travel to get to the other state? So, some corporations are making the decision that says, well, our employees in one state can't get an abortion, we want to help provide that access, we want to pay for the travel. Okay, so now they've decided to pay for the travel so how are they going to do that? A lot of my clients are like, oh, we're just going to amend our corporate travel policy because we already reimburse travel for any number of things like business expenses. You can't just amend that travel policy to cover the travel for an abortion, or for any medical event, because if a reimbursement is contingent upon the receipt of medical care, then that's a medical plan and you have to follow all the medical plan rules. So even though you're not paying for medical procedure, the benefit is contingent - it's medical travel, you're travelling for medical reasons, you're getting a medical procedure, the reimbursement is contingent on medical care and you have got to follow a whole different set of rules that don't usually apply to travel reimbursement.”
Joe Glavina: “I know a number of companies have actually stated publicly and to their employees that they are going to pay for their employees to travel. What how risky is that and is there any criminal liability, potentially, in taking that approach?”
Juliana Reno: “There's potential criminal liability. In my view, it's not all that risky right now but I can't say it's risk free. So right now, the question is, if you have a state, again, that prohibits abortion, and some resident of that state travels and the company reimburses for the travel, the question is whether that state, the state that prohibits abortion, is going to take the position that you have aided and abetted a criminal act under their state criminal law and there are arguments both ways. The main argument against is that if somebody travels to a state where it's prohibited, it's not a criminal act – you can’t aid and abet a legal act, you have no criminal liability for that. The counter argument is, oh, no, no, we intended our criminal laws to apply outside of our state. That's very unusual but I expect that some states are going to try that. So it's a question of whether you're willing to take that risk or not”
Joe Glavina: “So finally, Juliana, what's your final message to HR professionals and in-house lawyers watching this?”
Juliana Reno: “Obviously, my message is call an employee benefits lawyer. Call me! But the real message is, if you're going to pay for travel, don't just amend your travel policy, you have a medical plan, you have to fit within one of these very specific medical plan models that the law permits and make sure you talk to somebody that knows how to structure that properly so that you don't end up paying huge penalties under the Affordable Care Act, and also so that you maximise the privacy opportunities and minimise your own criminal liability. So there's a number of different ways that that can happen, that’s all pretty technical, we can talk about that if you like, but the big message is, you need to structure it right or you're going to have unnecessary exposure.”
Juliana has written two articles on this subject which look at all of those issues in more detail. ‘Medical Travel Benefits: What Employers Need to Know’ and ‘Supreme Court Overrules Roe v. Wade: Considerations for Employer Health Plans’. We have put links to both of them in the transcript of this programme.