Large employers face tough hurdles to provide abortion benefits if Roe is overturned

Kim Nguyen felt a sense of pride last fall when her bosses at Alloy committed to pay travel expenses for workers in Texas if they needed to access abortion services, after the state passed new restrictions.

"These types of things, especially around equity, diversity, inclusion, access to reproductive rights, [are] front and center for me personally. And it's so amazing that the company sees that as well," said Nguyen, vice president of people at Alloy.  

The founders of the New York-based fintech start-up have pledged to expand the travel benefit, if the Supreme Court overturns Roe v. Wade.

"Our stance is always to think about how we can look after the folks who work at Alloy, if some other institution is not," said Tommy Nicholas, Alloy CEO.

Since the leak of a Supreme Court draft ruling on Dobbs v. Jackson Women's Health Organization — the case that would toss out Roe v. Wade — a growing list of large employers have pledged to maintain abortion access for workers and family members. Companies including Citigroup, Salesforce, Starbucks, and Amazon have said they will provide travel benefits for those who need to travel out of states where access is restricted or banned.

Less than 10% of S&P 500 firms publicly disclose whether they cover abortion services as part of their health plans, according to a 2020 benefits analysis by Equileap, a data firm devoted to promoting gender equality. About half of those firms cover elective pregnancy termination, while a quarter specify that they would cover the procedure if the health of mother is at risk, or in cases of rape or incest. Now, though, many companies may be revisiting their policies.

"Most — not all — but most employers that recruit on a national level are trying to figure out ways to have a continuation of the medical service," said Owen Tripp, CEO of Included Health, formerly known as Grand Rounds and Doctor on Demand. "The challenge is that they need to sort of put a process in place whereby an employee can raise their hand and say, this is something that I would like to take advantage of."

At Alloy, the company's health-benefits provider was not prepared to administer the travel program. So, employees will have to work directly with the company's human resources team, which has designed a process with the finance department that will protect the worker's privacy in the same way they would in regard to any other medical issues.  

Tripp of Included Health says large employers that his company works with have tapped the firm's navigation service to help administer abortion travel benefits. But in some cases that's all they're doing.  

"There are a couple large employers that we work with that actually only want to cover the travel portion, but they're not going to cover the medical benefit," said Tripp. "I think you're going to see some nuances in how employers tackle that issue."

Analysts say maintaining abortion benefits for employees in states which limit or outlaw abortion could become more complicated legally for national employers if the high court overturns Roe v. Wade. Such a decision could trigger abortion bans in more than a dozen states, and possibly result in half of the U.S. banning or greatly restricting access to abortion services.

While the Employee Retirement Income Security Act, known as ERISA, gives national employers the ability to avoid some state health insurance regulations, a ban on a medical procedure doesn't allow for similar workarounds.

"The heart of ERISA doesn't grant an employer the ability to do something that's otherwise illegal. So, if it is made illegal in the state to pursue or receive an abortion in that state ... an employer's benefit program wouldn't be able to reimburse or pay for that," explained Garrett Hohimer, director of policy and advocacy at Business Group on Health, which represents large employers.    

Beyond restrictions on access, the new abortion ban legislation in Oklahoma will give citizens the right to enforce abortion laws; it's now the third state to allow the practice, joining Idaho and Texas. Others may follow.

Those citizen-enforcement clauses allow private individuals to sue anyone who facilitates an abortion, which could potentially include insurers and employers who cover the costs of procedures.

"Anybody that has invested in health insurance is going to have to go back to the drawing board and review where they stand. Because not only does coverage and denial policy become front and center, but also litigation — litigation against the plan for its determination of what's appropriate, and what's not," said health-care consultant Paul Keckley, a former executive director of the Deloitte Center for Health Solutions.

While a growing list of major employers have come out in support of maintaining access, most are waiting until the high court's ruling to announce how they'll handle abortion benefits. But that wait-and-see approach also sends a message, to some.

"I view that, and I think a lot of other people view that, as a decision in and of itself," said Nicholas of Alloy.

As Disney executives discovered after Florida's so-called "Don't say Gay" bill, companies now risk pushback from all sides, whether they take a stand or not when it comes to hot-button social issues like sexual orientation and abortion.  

"Being a corporate citizen in America right now, you have to be able to define for yourself, your character in this country, and how you're going to be perceived," said Hohimer. "I don't know that every employer is going to be treated fairly or revered for whichever side of this they come out on."

The Supreme Court is expected to issue a ruling in the case of Dobbs v. Jackson Women's Health Organization in June.