Insurance Law

How the decision overturning Roe v. Wade affects insurance coverage for abortions and related litigation

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Insurance companies are facing new legal issues after the U.S. Supreme Court ruled last month that there is no constitutional right to abortion.

The issues concern coverage for abortions and coverage for doctors and companies facing abortion-related lawsuits, report Law360, Reuters and CNBC.

• Insurance coverage for abortions under state-regulated plans. Before the Supreme Court’s June 24 decision in Dobbs v. Jackson Women’s Health Organization—a challenge to Mississippi’s ban on most abortions after 15 weeks of pregnancy and that overruled the abortion-rights opinions Roe v. Wade and Planned Parenthood v. Casey—11 states banned coverage for abortion in all private insurance plans written in the states. A handful of other states, on the other hand, required abortion coverage. Now, the count may change as more states ban abortions. And those with abortion insurance coverage who plan on leaving the state for an abortion could find that their policy excludes coverage if the abortion is out of network. (CNBC, the Guttmacher Institute)

• Insurance coverage for abortions under employer-funded health plans. Such health plans are regulated by the Employee Retirement Income Security Act of 1974, which bars states from imposing requirements relating to health plans. One exception to ERISA preemption, however, relates to generally applicable criminal laws. Would the ERISA exemption apply if state laws impose criminal liability on those who aid and abet abortions? Federal caselaw is unclear. (Reuters, Littler Mendelson)

• Directors and officers coverage for companies providing financial support for employee abortions. Directors and officers coverage often excludes coverage for deliberate criminal acts. It’s unclear whether insurers would cite the exclusion if a company is sued for providing abortion support to an employee living in a state where the procedure is illegal. (Law360)

• Professional liability coverage for doctors performing abortions. If coverage excludes liability for wrongful acts, it is unclear whether policies will cover doctors performing abortions in states where it is legal in suits originating in states where it is illegal. (Law360)

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