Seyfarth Synopsis: Access to reproductive health care has been a part of the national debate for years, and even more so since 2022 when the US Supreme Court issued its ruling in Dobbs overturning decades of precedent established under Roe v. Wade. As a result, the topic has become a focal point in the Presidential election with the two main candidates having seemingly very different platforms and catering to their constituencies who have strongly held beliefs and values on the issue. This aspect has been well covered in the media. However, employers also have a vested interest in how the federal and state laws and jurisprudence evolve in this area, which is largely dependent on which party wins the White House and down ticket races this November.
Under Dobbs, the Supreme Court dismantled the federal Constitutional protections around abortion access specifically (and arguably reproductive health care more generally), and in light of the absence of specific federal legislation regarding the right to an abortion, gave the decision on access to each of the states. This triggered fairly immediate action in many of the state legislatures and mobilized citizen initiatives around the country.
State Ballot Initiatives
We have already seen multiple state constitutional ballot initiatives seeking to either protect or prohibit abortion access with every outcome resulting in protecting the right to access reproductive health care. In the first sign of things to come, in August 2022, voters in Kansas soundly defeated a ballot measure that would have taken away the right to an abortion that the Kansas Supreme Court had found existed in the state constitution. Montana voters then defeated a proposal that would have extended legal personhood to all infants “born alive” from an attempted abortion. Citizens in Michigan and Ohio approved ballot initiatives protecting the right to abortion under their state constitutions in 2022 and 2023 respectively.
This November, there are a whopping ten states with ballots initiatives to protect the right to an abortion (and one state with dueling measures). These are: Arizona, Colorado, Florida, Maryland, Missouri, Montana, Nebraska (dueling measures), Nevada, New York, and South Dakota. The outcomes of these state initiatives will be critical to the residents of those states, but also to the national discourse on this topic.
In the wake of the rapid evolution from a single standard to a myriad of state and local laws,1 employers have grappled with what care should (or could) be offered under their medical plans in any given state, how to ensure that their employees have equal access to medically necessary healthcare, and the resulting cost related to absenteeism and the impact on their medical and disability benefit plans.2 See our discussion of those medical plan issues, including coverage for travel benefits [here].
This all sets the stage for what may happen as a result of the 2024 elections. On the national stage, the Presidential candidates have approached this topic very differently.
National Legislation
Former President Donald Trump and his campaign have made shifting statements as to how they would approach access to reproductive health care. At times he has refused to answer questions on whether he would sign a national abortion ban into law, and at other times stated he would veto it, claiming that he wants to leave it up to the states. On the other hand, Vice President Kamala Harris has stated she would like to sign a law that codifies the protections of Roe v. Wade (under which abortion is a protected right up to viability). We note that a split Congress could result in gridlock, making it challenging to pass significant legislation on reproductive health either way. In this scenario, state-level battles would become even more critical, as states would continue to set their own policies.
Emergency Care
The Biden Administration has been aggressively pursuing their position that the federal Emergency Medical Treatment and Labor Act (EMTALA) which requires access to emergency medical service from health care providers, includes access to abortion care where required to stabilize the patient. Certain states have fought that interpretation of EMTALA through the courts. It is evident that a Harris Administration would continue to enforce EMTALA in this manner. It is less clear, but a distinct likelihood that a Trump Administration would reverse course and not require abortion care in an emergency situation. And, Project 2025 (which Trump has tried to disclaim as an official platform for his campaign) explicitly calls for the administration to revoke the current guidance under EMTALA and stop enforcing the law in this manner. Allowing hospitals to deny emergency, life-saving abortion care to pregnant women in crisis would seem to negatively impact employers by resulting in significant medical plan cost increases, and potentially loss of life.
Access to Contraception and Abortifacient Drugs
We have seen the debate over access to abortifacient drugs play out in the lawsuit against the FDA over its approval of mifepristone. Although the FDA’s approval was ultimately upheld, the case was decided due to lack of standing of the plaintiffs who were a group of pro-life doctors. More recently, three Republican-led states (Missouri, Kansas, and Idaho) have filed a new lawsuit (in the same favorable venue in Texas) seeking again to restrict access to mifepristone. Again, while not completely clear, Trump indicated in early August that he is open to banning access to the abortion pill, and Project 2025 would seek to ban such access through use of the Comstock Act. On the other hand, a Harris Administration would seek to protect access to medication abortion, which has proven safe and effective.
The campaigns seem more aligned on protecting access to contraception, which is a covered medical item under group health plans pursuant to the Affordable Care Act (ACA), unless a religious exemption applies. However, the Trump campaign has provided mixed messaging on this topic, and continues to indicate it will remove and replace the ACA. The replacement program has not been explained.
In-Vitro Fertilization (IVF)
Continued access to IVF has become a concern highlighted by the Alabama Supreme Court’s decision that found an embryo created through IVF to be a child within the meaning of an Alabama statute. (See our Legal Update on that case here.) In response, the Republican governor of Alabama signed into law a bill protecting IVF and the providers of the treatment. Both campaigns have indicated they support continued access to IVF. On the other hand, Project 2025 calls for legal personhood status from the moment of conception, which threatens the continued availability of IVF nationwide.
Privacy (Travel)
As discussed above, many employers’ medical plans have looked at providing coverage for travel benefits where otherwise covered care is not available in the participant’s home state. There has been unease that some states (e.g., Alabama, Idaho, Tennessee and Texas) where abortion is illegal would seek to prosecute its citizens (and those who helped them) who sought care in states where the procedure is legal. As a result, concern has been expressed over a women’s right to privacy concerning her pregnancy, and whether an employer’s health plan would have to report information it has as to a pregnancy of a participant to law enforcement.
HHS, under the Biden Administration has issued guidance under the HIPAA privacy rules that a covered entity, such as an employer’s health plan, may not disclose such information to law enforcement where it is sought for the purpose of conducting an investigation into a person regarding their reproductive health care or imposing liability for such care. (See our report on the new rules here.) It is evident a Harris Administration would continue that approach, while a Trump Administration may direct HHS to remove that guidance.
While neither candidate supports a national program to monitor pregnancies, Project 2025 calls for passage of “The Ensuring Accurate and Complete Abortion Data Reporting Act of 2023” which would amend the Social Security Act and Public Health Service Act to improve the CDC’s reporting mechanisms by requiring all states, as a condition to receiving Medicaid payments for family planning services, to report data on abortions and miscarriages.
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The 2024 election outcomes will have profound implications for reproductive health in the United States. As voters head to the polls, the importance of reproductive rights may be a key issue influencing their decisions. The outcome of the presidential election as well as Congressional races and ballot initiatives will impact next steps for employers in this space. We will be monitoring these issues and the potential impact on employers.
1 We are tracking this patchwork of laws for our clients in our Reproductive Health Care Survey found [here].
2 Putting aside personal belief systems on reproductive health care (be it abortion, IVF or contraception), the costs to an employer’s health plan is directly linked to the governments’ policies where employees access care. Studies are in agreement that lack of access to this care in those states who have severely restricted abortions adversely impact both infant and maternal mortality. This is not just a human tragedy, but also a driver of high medical plan costs.