How the decision quashing Roe v. Wade affects insurance coverage for abortions and related litigation
Image from Shutterstock.
Insurance companies face new legal problems after the US Supreme Court ruled last month that there is no constitutional right to abortion.
• Insurance coverage for abortions under state-regulated schemes. Prior to the June 24 Supreme Court ruling in Dobbs v. Jackson Women’s Health Organization– a challenge to Mississippi’s ban on most abortions after 15 weeks of pregnancy that overturned views on abortion rights Roe vs. Wade and Family planning c. Casey-11 states have banned abortion coverage in all private insurance plans underwritten in the states. A handful of other states, on the other hand, required abortion coverage. Now, the count may change as more states ban abortions. And those with abortion insurance coverage who plan to leave the state for an abortion might find that their policy excludes coverage if the abortion is out of the network. (CNBC, the Guttmacher Institute)
• Insurance coverage for abortions under employer-sponsored health plans. These health plans are regulated by the Employees Retirement Income Security Act of 1974, which prohibits states from imposing health plan requirements. One exception to the ERISA preemption, however, relates to generally applicable criminal laws. Would the ERISA exemption apply if state laws impose criminal liability on those who aid and abet abortions? The federal case law is unclear. (Reuters, Little Mendelson)
• Coverage of directors and officers of companies who financially support employee abortion. Coverage for directors and officers often excludes coverage for willful criminal acts. It’s unclear whether insurers would cite the exclusion if a company is sued for providing abortion assistance to an employee living in a state where the procedure is illegal. (Law360)
• Professional liability insurance for doctors performing abortions. While coverage excludes liability for wrongdoing, it’s unclear whether policies will cover doctors performing abortions in states where it’s legal in lawsuits originating in states where it’s illegal. (Law360)