O'Melveny Insights 2023

33 Post-Dobbs, O’Melveny is helping employers, health insurers, and other affected clients address the myriad legal issues raised by the ruling. Q: How have companies responded to Dobbs? A: Many companies were prepared for this, and when the Dobbs decision was announced, they took steps to support abortion rights and to protect employees’ access to abortion care even when those employees reside in states with new restrictions. One common approach has been to provide a benefit as part of employees’ health coverage that reimburses covered individuals for the cost of traveling to a location where they can access abortion care. So, for example, an employee who lives in Idaho could be reimbursed for the cost of traveling to California, in addition to getting reimbursed for the procedure itself. Q: What risks do companies offering abortion- care benefits face? A: There is still some uncertainty about whether and to what extent states will pursue the argument that offering the benefit violates state law. Generally, states may regulate the benefits in fully insured plans (i.e., those in which an employer purchases insurance from an insurance company), but ERISA preempts state regulation of the benefits for self-insured plans (i.e., those in which an employer provides the health benefits directly to employees). Self-insured plans have more flexibility in the benefits they can offer, but some states may, nevertheless, assert that companies that sponsor, insure, or administer a travel benefit are criminally aiding and abetting access to abortion care. That argument could raise unsettled ERISA preemption questions as well as thorny constitutional issues. For now, there’s no way to eliminate risk, but by being mindful of the state-level constraints, you can structure a benefit program in a way that limits risk. The US Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization overturned the constitutional right to abortion established in Roe v. Wade in 1973. While the Dobbs decision affected many on a deeply personal level, it also changed the legal landscape, with the authority to regulate reproductive health care now left largely to the states. While some states have strictly limited, banned, or even criminalized the procedure, others have added protections to ensure continued abortion access.