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Beyond abortion: Implications of the Supreme Court’s Dobbs decision on reproductive health coverage

Beyond abortion: Implications of the Supreme Court’s Dobbs decision on reproductive health coverage

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While the more conventional elective abortion procedure has received the lion’s share of media attention and tends to be the focus of political and social debate, coverage of women’s health care services more broadly may well be impacted by the Supreme Court’s recent decision in Dobbs v. Jackson Women’s Health Organization and subsequent state actions.   

What should employers and group health plan sponsors be thinking about outside of the coverage of abortion services?  

Coverage for women’s healthcare services 

The interpretation and application of state anti-abortion statutes are likely to create a variety of women’s health care coverage questions and may impede access to care.   

For example, how will this care be covered when a miscarriage requires the same medical treatment as an elective abortion (i.e., removing uterine tissue to prevent or eliminate infection)?  What guidance will be in place to ensure that women receive the care they need and that the subsequent claim will be processed appropriately? 

Provider scope of practice laws regarding the legality and availability of prescription drugs relating to women’s reproductive health also require consideration, including the so-called “morning-after” pill. It is unclear what guidance if any will be made available on these and similar issues.  

Furthermore, interpretation and application of anti-abortion law exemptions for abortions deemed “medically necessary” or in cases of “severe fetal abnormality” have created coverage and access uncertainty as well. In this regard, the impact of Texas’s recently enacted abortion ban on access to medical treatment for miscarriage and high-risk pregnancy has already been widely reported in the media.   

Varying definitions of what constitutes an “unborn child” 

There are also concerns that certain anti-abortion statutes could impact traditional IVF benefits, mainly where an anti-abortion law defines “unborn child” more broadly. Where a state abortion restriction applies to a fetus or embryo at any gestation period, it could also apply to unused embryos created for IVF purposes, typically discarded following the fertility treatment. 

Access to care 

Even in states where abortion procedures remain legal or available with a more limited application (e.g., in the case of rape or incest or up to 20 weeks), limited provider availability could create other challenges, such as access to care. While individuals with the means to do so may travel out of state to seek the procedure legally, an influx of abortion travel could overwhelm providers and facilities.  

Additionally, in states where abortions are illegal, providers may be reluctant to perform the procedure for fear that they may expose themselves to civil or criminal liability in relation to their interpretation of relevant legal terms such as “medical emergency” or “necessity.”  For example, ectopic pregnancy can create uncertainty in the mind of a physician as to when the procedure may be permitted under a state abortion law that allows the procedure only when the life or health of the pregnant person is in imminent danger. 

Potential impact on the U.S. healthcare system 

Importantly, some have also questioned whether limiting abortion access will translate into increased healthcare costs.  With many now unable to access elective abortions, providers and hospitals will need to prepare for an increase in pregnancies, labor and delivery admissions, and newborn care.  Women and health care providers in rural areas and communities with more limited resources will disproportionately feel the impact of restricted access to abortion services.   

While employers and plan sponsors have been actively contemplating the various questions and challenges presented by the Dobbs decision in the context of coverage for abortion services specifically, these questions show that other areas of women’s reproductive health, as well as health care more broadly, must also be considered in the weeks and months ahead.