Self-funded health plan sponsors face challenging legal issues post-Roe

On Friday, June 24, 2022, the U.S. Supreme Court issued its decision in Dobbs v. Jackson Women’s Health Organization and overruled Roe v. Wade and Planned Parenthood of Southeastern Pa. v. Casey. In doing so, the Court held the U.S. Constitution “does not prohibit the citizens of each State from regulating or prohibiting abortion.”

While abortions remain legal in a number of states (California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New Mexico, New York, Oregon, Pennsylvania, Rhode Island, Vermont, Washington, and Wisconsin), as many as 26 states are expected to ban or limit access to abortions now or in the future.

Implications for Oklahoma employers

Oklahoma generally makes it a felony for a physician to administer or assist with an abortion. The state also recently enacted the Oklahoma Heartbeat Act (OHA), which establishes a private civil claim as follows: “Any person, other than the state, its political subdivisions, and any officer or employee of a state or local governmental entity in this state, may bring a civil action against any person who . . . Knowingly engages in conduct that aids or abets the performance or inducement of an abortion including paying for or reimbursing the costs of an abortion through insurance or otherwise” (emphasis added).

As applied to employers and their self-funded group health plans, laws such as the OHA create very difficult questions, including: