Will your health plan pay for an abortion now that the Supreme Court has overturned Roe vs. Wade?
Even before the June 24 ruling, insurance coverage for abortion varied widely. Today, the issue is even more complex because states set varying rules – about half of them should limit or prohibit abortion in almost all circumstances.
Abortion is legal in Pennsylvania until 24 weeks of pregnancy. New Jersey codified the right to abortion and in June passed legislation making the state a “safe haven” for out-of-state patients.
To be clear, whether an insurance plan covers abortion is not the same as whether abortion is legal in a state. Coverage issues are more complicated and governed by a wide variety of factors, including the level of access to abortion a state allows.
READ MORE: Abortion providers in Pennsylvania brace for surge in patients if Roe v. Wade is canceled
What is the density of a thicket? Abortion may be covered by a health plan, but if no provider is available, patients cannot access them. People with insurance that doesn’t cover abortion can still get one if it’s available in their state or if they can afford to travel and pay out of pocket. It is also unclear whether states that restrict abortion will have the legal authority to target abortion coverage in employer plans.
The issues will likely be before the courts for years to come.
“States will pass laws, there will be disputes, and then it will go to court,” said Erin Fuse Brown, director of the Center for Law, Health & Society at the Georgia State University College of Law. “It might take a while.”
In the meantime, here are the answers to three common questions.
The simple answer is no.”
Whether this is the case is more complicated.
Some employment-based health plans cover elective abortions. Patients can search for their plan documents or call their insurer directly to verify.
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Coverage is more likely in plans offered by self-insured employers because federal pension law typically overrides state regulation of these health plans. Self-funded employers, which tend to be the largest, pay the medical bills.
Yet millions of Americans work for smaller employers, who tend to buy plans directly from health insurers, who then pay the medical bills. These plans, called “fully insured,” are subject to state laws, whose approaches to abortion coverage have long varied.
eleven states prohibit these private schemes to cover abortion in most cases, according to the Kaiser Family Foundation, although some states allow consumers to purchase an insurance endorsement that would cover abortion costs.
If you’re not sure what type of health plan you have, ask the administrators.
“There’s no way to tell from the face of your insurance card if you’re fully insured or self-funded,” Fuse Brown said.
For the more than 14 million Americans who buy their coverage through Affordable Care Act markets, their state of residence is critical.
Twenty-six states, including Pennsylvania, restrict abortion coverage in ACA plans, while seven states require it as a plan benefit, according to KFF. New Jersey is one of about a dozen states that does not prohibit abortion coverage in ACA plans and has at least one plan offering such coverage.
The rules for Medicaid, the federal state health program for low-income people, also vary. Thirty-four states, including Pennsylvania, and the District of Columbia follow the so-called Hyde Amendment, which prohibits federal funds from paying for abortions except for rape or incest or to save the life of the mother . New Jersey is among a minority of states where Medicaid pays for all or most medically necessary abortions, according to KFF.
Insurance policies should cover care for essential health services, including medically necessary pregnancy care and abortion when carrying a pregnancy to term would endanger a patient’s life.
Under the Pregnancy Discrimination Act 1978 and other rules, said Fuse Brown, “pregnancy and prenatal care, including high-risk pregnancies, and obstetric care in general should be covered.”
In an ectopic pregnancy – when a fertilized egg implants outside the uterus – the embryo is not viable and the condition is usually life-threatening to the mother without medical treatment.
READ MORE: After two ectopic pregnancies, I’m scared of what might happen without Roe v. wade
Although all state laws that currently restrict abortion include an exception to save the life of the mother, what constitutes a life-threatening scenario is not always clear. This means that doctors in abortion-banning states may have to weigh the pregnant person’s medical risk against possible legal ramifications.
“It’s less about coverage and more about whether providers in states that ban abortion are going to provide the care,” said Katie Keithresearch faculty member at the Center on Health Insurance Reforms at Georgetown University.
In recent weeks, many major employers – including Microsoft, Bank of America, Disney and Netflix – have said they will help with travel expenses so that workers or other beneficiaries in prohibiting states can have abortions elsewhere.
But it’s not as simple as it seems. Employers will need to determine whether workers access this benefit through the health plan or another method of reimbursement. Protection of private life, too, can be a problem. Some consultants also said employers will need to consider whether their travel reimbursement conflicts with other rules.
If an employer, for example, covers travel costs for abortion procedures but not for an eating disorder clinic, does this violate the Mental Health Parity and Addiction Equity Act? If a plan does not have providers willing or able to perform abortions, does it violate state or federal network adequacy rules?
Lawmakers need to think about these conflicts, said Jessica Waltman, vice president of compliance at benefits company MZQ Consulting. “They could put all employer-sponsored group plans in their state in a very precarious position if this state law prohibits them from complying with federal law,” she said, especially if they restrict access to benefits under the Pregnancy Discrimination Act.
There are other potential conflicts if an employer is in a state that allows abortion but a worker is in a state that restricts it, said Rene Thornedirector at Jackson Lewis, where she oversees litigation involving self-insured businesses.
It’s also unclear whether state laws will target insurers, employers or others who provide benefits, including travel or televisiting, for abortion services.
Laws that restrict abortion, Thorne wrote in a white paper for customers, generally apply to the medical provider and sometimes to those who “aid or abet” abortion. Some states, including Texas, allow private citizens to sue for $10,000 anyone who offers an illegal abortion or helps someone access an abortion.
Never have health plans, their sponsoring employers and plan administrators been in a position where they could face criminal liability in connection with a plan benefit, said Seth Perettadirector of the Groom Law Group, which advises employers.
“We are in uncharted territory here,” he said.
Kaiser Health News is a national newsroom that covers health issues.