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Missouri Employers and Abortions as Healthcare: Don't Ask, Don't Tell

by Ruth Binger

The recent U.S. Supreme Court decision in Dobbs v. Jackson Women’s Health Organization triggered abortion bans in Missouri and several other states. The Dobbs decision has led to many legal questions related to abortion and healthcare, especially in states that enacted trigger bans.

Life-saving abortions in cases of medical emergency and the legality of Pre-Roe abortion bans are in question. Concerns include how laws will be enforced, who can be charged with conspiracy, and if a state with an abortion ban can exclude a fetus from being considered a person in other areas of the law.

Employers are raising questions what is or is not covered regarding abortions in employer-sponsored insurance plans. Federal law requires health plans to cover abortion in cases where there is a medical emergency and if the mother’s life is endangered. Health insurers are also subject to state laws, impacting whether policies must, or are even allowed to, cover abortion services.

Some employers are exploring options to provide benefits covering reproductive healthcare in other ways. Employers need to be aware of legal risks (civil suits or criminal against those who perform or assist with abortions) when publicizing these benefits. Options for benefits include:

1. Reimburse employees for travel for health purposes. There are currently no abortion bans to keep a woman from crossing state lines to seek an abortion. The U.S. Attorney General will consider such bans as breach of interstate commerce. With the current makeup of the Supreme Court, it is unlikely an interstate ban would pass the Court.

2. Provide an Employee Assistant Program (EAP) to provide health benefits under an EAP exception. This EAP could cover travel expenses for an abortion but not the procedure.

3. Reimburse abortions expenses through a health savings account (HSA). Note: HSA reimbursement is limited to the IRS maximums and employers can only contribute to a high deductible health plan.

Other questions surround employee privacy. Evidence is often gathered through online activity, text messages, web searches, and medical records. The FTC is considering taking steps toward protecting consumer privacy and online activity. In addition, under new HIPAA guidance doctors do not have to or are not permitted to disclose private medical information to law enforcement. But HIPAA only applies to employer group health plans, not EAPs. HIPAA-protected data can still be obtained through employee consent, court order, subpoena, or warrant. The best ways to protect your employees and your business is to keep information collected to a minimum and not ask how employees are utilizing the benefits.

More litigation over the impact of abortion bans and the recent questions raised is coming. Some companies that have announced assistance to employees have already been accused of illegally aiding and abetting abortion. They are keeping related records on hand for potential litigation in local courts.
The legal landscape surrounding employer insurance may change quite a bit in the coming years. Employers should proceed with caution, balancing what is best for their employees and what legal risks they are willing to take, and seek legal advice before making any major changes.

For a more in-depth look, go to www.BeyondTheFinePrint.com.

Ruth Binger, employment attorney with Danna McKitrick, P.C., serves both emerging and mature businesses concentrating in corporate law, intellectual property and technology law, cybersecurity, digital media law, and labor and employment law. Her commitment to the success of small to medium-sized businesses, and her understanding of multi-faceted issues inherent in operations, are what distinguish Binger’s practice. Ruth can be reached at 314.889.7167 or rbinger@dmfirm.com.
Submitted 62 days ago
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