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Abortion and Contraceptives Services for Group Health Plans Toolkit
Practical Law Toolkit w-036-2416 (Approx. 13 pages)
Abortion and Contraceptives Services for Group Health Plans Toolkit
by Practical Law Employee Benefits & Executive Compensation
| Maintained • USA (National/Federal) |
A collection of resources addressing compliance issues for employer-sponsored group health plans in offering coverage for reproductive health care services, including for abortion and under the Affordable Care Act's (ACA's) contraceptives mandate. These services have been the topic of extensive litigation in recent years, resulting in an ever-changing legal and regulatory landscape for employer/plan sponsors in making plan design decisions.
Employers that sponsor group health plans under the Employee Retirement Income Security Act of 1974 (ERISA) may face challenging plan design questions regarding the extent to which (if at all) they will offer coverage for reproductive health care services, including for abortion and contraceptives. Plan coverage decisions concerning these services can be controversial and have been the topic of extensive and ongoing litigation in recent years. At the same time, however, some employers view offering reproductive health care services as an important part of their diversity, equity, and inclusion (DEI) initiatives (see Diversity, Equity, and Inclusion (DEI) for a Lawyer’s Practice and Workplace Toolkit).
ACA Contraceptives Mandate
Regarding contraceptives, the Affordable Care Act (ACA) (enacted in 2010) requires non-grandfathered group health plans and health insurers to provide coverage, without cost-sharing, for certain preventive health services (see Practice Note, Affordable Care Act (ACA) Overview). As implemented, this mandate includes a broad array of contraceptive methods and related benefits. However, the ACA's contraceptives mandate almost immediately became the subject of litigation brought by employers and other entities that objected to providing contraceptives under their plans. For example, this litigation has included challenges to the contraceptives mandate under the Religious Freedom Restoration Act of 1993 (RFRA) and the Administrative Procedure Act (APA).
Today, after well over a decade of litigation that has included multiple Supreme Court rulings, the contraceptives mandate is subject to broad religious and moral convictions exemptions for objecting employers (under final regulations issued in November 2018 by the Trump administration).
In February 2023, the Biden administration issued proposed regulations under the contraceptives mandate that would (among other things):
- Remove the moral convictions exemption under the Trump-era implementing regulations.
- Add an individual contraceptives arrangement (ICA) option that involves health providers and insurers.
In issuing the February 2023 proposals, the administration referenced the need to expand access to contraceptives in light of the Supreme Court's June 2022 Dobbs ruling (discussed below), which held that there is not a right to abortion under the federal Constitution.
Health Plan Implications of Supreme Court's Dobbs Ruling on Abortion
Abortion has been a controversial topic for decades. However, the issue became top-of-mind for employers, health plans, and health insurers after the Supreme Court heard oral arguments in December 2021 in a case involving a Mississippi abortion law (Miss. Code Ann. § 41-41-191). The Mississippi law in dispute:
- Prohibited most abortions after 15 weeks of pregnancy.
- Conflicted with the Court's longstanding abortion rulings (Roe v. Wade, 410 U.S. 113 (1973); Planned Parenthood v. Casey, 505 U.S. 833 (1992)).
In June 2022, the Supreme Court held that there is no federal constitutional right to abortion, that Roe and Casey were overruled, and that the disputed Mississippi law therefore survived constitutional challenge (Dobbs v. Jackson Women's Health Org., 597 U.S. 215 (2022); see Legal Update, Supreme Court's Overruling of Roe v. Wade Raises Health Plan and Employment Implications). The Dobbs ruling led many employers to review their plan design options for coverage of abortion and related services, particularly in states that already had (or have since imposed) significant restrictions on abortion.
Supreme Court Rejects Health Providers' Challenge to FDA Regulation of Mifepristone
In April 2023, district courts in Texas and Washington State issued rulings addressing the Food and Drug Administration's (FDA's) approval (more than 20 years ago) of a medication abortion drug called mifepristone (Alliance for Hippocratic Med. v. U.S. Food & Drug Admin., 668 F. Supp. 3d 507 (N.D. Tex. 2023); Wash. v. U.S. Food & Drug Admin., 668 F.Supp.3d 1125 (E.D. Wash. 2023); see Legal Update, Competing Texas and Washington State Rulings Place Coverage of Medication Abortion (Mifepristone) in Question). The Texas order stayed the FDA's approval of mifepristone and later regulatory actions regarding approval of the drug. However, the court temporarily stayed its nationwide order to give the FDA time to seek relief from the Fifth Circuit. The Fifth Circuit stayed part of the Texas district court's order affecting the FDA's initial approval of mifepristone, but not aspects of the ruling suspending subsequent FDA actions (including the agency's removal of an in-person dispensing requirement). The Supreme Court issued an emergency stay permitting mifepristone to remain available pending an appeal to the Fifth Circuit and review by the Supreme Court (143 S. Ct. 1075 (Apr. 21, 2023)).
Also in April 2023, the Washington State district court preliminarily enjoined the FDA from "altering the status quo" regarding the availability of mifepristone in certain states. The FDA noted the significant tension between the two courts' orders and asked the Washington State court to clarify how the FDA could comply with both the Texas and Washington State orders. The Washington State district court clarified that its April 7 order preliminarily enjoining the FDA from altering the status quo applied regardless of the Texas district court or Fifth Circuit rulings (669 F. Supp. 3d 1057 (E.D. Wash. 2023); see Practice Note, Health Plan Coverage for Surgical and Medication Abortion and Related Services: Medication Abortion).
Supreme Court to Review Fifth Circuit's Ruling (Dec. 2023); EMTALA Litigation
In August 2023, the Fifth Circuit vacated the part of the Texas district court's order that stayed the FDA's initial approval of mifepristone (Alliance for Hippocratic Med. v. U.S. Food & Drug Admin., 78 F.4th 210 (5th Cir. 2023); see Legal Update, Fifth Circuit Partially Upholds Stay Order in Medication Abortion Litigation). However, the Fifth Circuit affirmed the part of the district court's order that stayed the FDA's administrative actions from 2016 (and more recent years), which generally relaxed certain safeguards involving the use of mifepristone. The Fifth Circuit's August 2023 ruling was subject to the Supreme Court's April 2023 stay of the district court's order pending resolution of the appeal. In December 2023, the Supreme Court announced that it would review the Fifth Circuit's ruling (144 S. Ct. 537 (2023)).
In a June 2024 ruling, the Supreme Court rejected the providers' challenge to the FDA's regulatory actions concerning mifepristone, holding that the providers lacked standing (Food & Drug Admin. V. All. For Hippocratic Med., (U.S. June 13, 2024); see Legal Update, Supreme Court Rejects Doctors' Challenge to FDA's Regulation of Medication Abortion (Mifepristone) for Lack of Standing).
In January 2024, the Fifth Circuit also upheld a lower court injunction blocking Biden administration guidance (under the Emergency Medical Treatment and Active Labor Act of 1986 (EMTALA)) that required doctors to provide abortions when necessary to stabilize patients in emergency medical situations (Tex. v. Becerra, 89 F.4th 529 (5th Cir. 2024)).
Against this rapidly changing legal and regulatory backdrop, this Toolkit provides a collection of compliance resources for use by employers, plan administrators, third-party administrators (TPAs), other service providers, and their advisors in offering plan benefits involving reproductive health care services (including abortion and contraceptives) and the legal compliance challenges and potential legal exposure that may follow from those decisions.
Finding Dobbs-Related Resources on Practical Law; State-Law Quick Compare Chart
To access additional Dobbs-related resources, search "Dobbs w/5 Jackson" on the Practical Law website.
In addition, for more information on state laws and regulations addressing the post-Dobbs legality of abortion, health provider protections and penalties, payment requirements and restrictions, and requirements regarding medical abortions, see State Abortion Laws Quick Compare Chart (part of Practical Law's Health Care Service).
Practice Notes
- Contraceptives Coverage Under the ACA: Overview
Regarding the last bulleted item, a Texas district court vacated all federal administrative actions to implement or enforce portions of the ACA's preventive health services in March 2023 (Braidwood Mgmt. Inc. v. Becerra, 666 F. Supp. 3d 613 (N.D. Tex. 2023); see Legal Update, Texas District Court Blocks Enforcement of ACA's Preventive Health Services Requirements (in Part), Including PrEP).