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State Law Development: Abortion Restriction | The Phia Group

By: Nicholas Bonds, Esq.

The Mississippi abortion ban sits at the center of Dobbs v. Jackson Women’s Health Organization, the case heard by the Supreme Court at the end of 2021, and its 15-week ban on abortions would represent a significant change to the roughly 24 weeks that has been standard for the past 30 years. Established in the Roe v. Wade and Planned Parenthood v. Casey paradigm, the current conservative Supreme Court majority appears poised to either adopt the 15-week framework under the Mississippi law but could potentially overrule rule Roe and Casey altogether. This would essentially leave abortion regulation up to the states.

In the states, we’ve recently seen a sharp escalation in the number of Republican-led states banning or heavily restricting access to abortion procedures. Just in April, Kentucky and Florida both enacted legislation banning abortions after 15 weeks of pregnancy, effectively mirroring the Mississippi abortion ban. The Bluegrass state’s ban took immediate effect, while the Sunshine state ban is poised to become effective July 1 – just in time for the decision in Dobbs, expected by the end of June. Bans have also recently been enacted in Oklahoma, Arizona, Idaho, and Wyoming.

Despite the Mississippi ban actually being debated in a Supreme Court case, arguably the most high-profile state abortion ban came out of Texas. The so-called “Heartbeat Bill,” which took effect September 1, 2021, bans abortion after six weeks – long before many may even realize they are pregnant. This ban is perhaps most notable for its enforcement mechanism. The ban effectively deputizes the citizenry into policing each other, establishing a bounty of at least $10,000 for bringing a civil suit against anyone who facilitates or provides an abortion. This novel enforcement mechanism has so far insulated this incredibly restrictive ban from being blocked by the courts and inspired a dozen other states to adopt similar legislation, despite it directly running afoul of the Roe/Casey framework, and even the new 15-week standard the Supreme Court may adopt in the wake of Dobbs. This Texas-style ban will likely need to be re-visited once that decision comes down.

Twelve states have “trigger laws” on the books – complete bans on abortion that will automatically go into effect upon Roe being overturned. Some states are also re-working their trigger bans so that even if Roe is not fully overturned, the ban would still become effective.

States have also begun moving to ban access to the medications that are used for medication abortion. During the pandemic, the FDA began allowing these medications to be prescribed via telehealth and shipped through mail-order pharmacies. Arizona, Arkansas, Missouri, Louisiana, Texas, and West Virginia have passed laws specifically prohibiting telehealth prescription for medication abortion, while 14 other states have enacted laws requiring the clinician providing a medication abortion to be physically present during the procedure.

Notably, other states have begun pushing legislation protecting abortion access and asserting their support for abortion rights. Sixteen states and the District of Columbia currently have laws protecting abortion access, and as many as thirty are considering laws expanding abortion access. Vermont has begun the process of amending its state constitution to guarantee abortion rights, and California has been developing legislation establishing the state as a sanctuary for women seeking abortions.

Federal law, currently, does not mandate that group health plans cover abortion procedures except in narrow circumstances. The Pregnancy Discrimination Act (PDA) amended Title VII of the Civil Rights Act of 1964 (Title VII) to generally only require health plans to cover abortions where the mother’s life would be endangered by taking the pregnancy to term. Where complications arise during the abortion procedure, plans are also required to cover the costs attributable to those complications, but not for the abortion procedure itself. The PDA and Title VII do nothing to prevent plans from covering abortion, so long as they cover it in the same manner and to the same degree that the plan covers other medical conditions.

It is not yet clear how this burgeoning web of state abortion restrictions will impact group health plans that do cover abortion procedures. The Texas law, and many of its copy-cats in other states, make no exception for the life of the mother, or for rape or incest (standard provisions per the Hyde Amendment). Consequently, a group health plan that covers an abortion where the mother’s life would be endangered (as required under the PDA and Title VII) could find itself subject to a civil suit by virtually any Texas resident. We would expect ERISA plans to be mostly protected from these state limitations by a combination of preemption and the supremacy clause, but while those questions are fully hammered out by the courts, some plans could find themselves in legal turmoil.

We can expect a decision in the Dobbs case by the end of the current Supreme Court term at the latest, at which point we may find ourselves with a new 15-week framework for abortion law at a federal level. If Roe and Casey are fully overturned, it will be the wild west for abortion law and group health plans will need to be all the more mindful of the abortion laws being enacted by the states in which they operate. We’ll be keeping an eye on all these developments, but if groups have any questions on these state laws in the meantime, please do not hesitate to reach out to our consulting team.