If the Supreme Court does as expected and strikes down the landmark Roe v. Wade decision, most Massachusetts residents will continue to have access to abortion services in the state through their employer- or state-provided health plans.
But over 1 million workers and family members on Massachusetts-based commercial health plans live in other states. And now, their ability to access abortion services where they live is unclear, since more than half of the states in the country appear poised to impose restrictions soon after or once Roe is struck down.
Questions remain about whether employers will pay for workers to travel for the procedure. Moreover, some local companies and insurers could face legal liability for helping facilitate an abortion for a resident of a state where it becomes illegal.
As the country waits for a court ruling, likely by early July, insurers and employers say they’re stuck in a holding pattern.
“Right now, it’s still fluid,” said David A. Shore, executive vice president of enterprise strategy and risk management at insurance broker Borislow Insurance. “No one knows with certainty what’s going to happen. But employers, executives, and CEOs who are passionate about it will go out of their way to provide access. People who are not will likely do nothing different.”
According to the Center for Health Information and Analysis, which compiled data at the Globe’s request, more than 1.5 million people living outside the state in 2020 were covered by a private commercial health insurance plan with a Massachusetts-based contract.
Currently 13 states have trigger laws that would quickly ban abortion if Roe is overturned, and five have a pre-Roe abortion ban that could be newly enforced. In all, 26 states are certain or likely to ban abortion, according to the Guttmacher Institute, which supports reproductive rights.
Shore said some employers have begun discussing how to provide access for workers who will not be able to get abortions where they live. To a degree, the conversation is similar to those around substance abuse treatment or behavioral health access, Shore said, where an employer might facilitate moving someone to another state for a service unavailable locally.
“If they have people in parts of the country . . . those employers will have to get creative of how they will still offer the benefit,” Shore said.
Eric Gulko, president of broker Innovo Benefits Group, said the main issue will be transportation to another state within a health plan’s provider network.
Some large Massachusetts-based national companies say their comprehensive coverage won’t change. A spokesperson for TJX Companies said it will continue to provide coverage for abortion for eligible US workers. The company has 340,000 employeesglobally — of whom around 6 percent work in Massachusetts.
“Our US self-funded health plan provides coverage in the US, without regard to coverage restrictions or requirements that may apply to fully insured plans under state law,” a TJX spokesperson said. “Associates who participate in TJX’s US self-funded health insurance plan may receive care for covered services in any state where they are legally performed.”
State Street Corp., the financial services company, said in a statement that while its medical plans currently cover abortion, it does not pay for travel expenses for the majority of its medical services in the country. A spokesperson said the company would “continue to monitor the situation and assess our policy as the situation develops.”
Blue Cross Blue Shield of Massachusetts, the state’s largest insurer, said it is studying what might happen to abortion access for its 822,000 members who live outside Massachusetts.
“Once the court issues its official and final decision this summer, we’ll work closely to evaluate any potential impacts to our members outside Massachusetts,” a spokesperson for the insurer said.
On the legal front, Shore said some employers are worried about the risks of offering a benefit that is illegal in other states.
George Annas, director of the Center for Health Law, Ethics & Human Rights at Boston University School of Public Health, said it’s unlikely companies or insurers could be held legally liable in those circumstances. Despite their stance on abortion, Annas said, states cannot stop residents from seeking medical care in another state.
However, he said the threat of litigation could discourage an insurer from providing those benefits. Texas, for example, recently passed an aggressive antiabortion law that allows residents to sue anyone who “aids and abets” a prohibited abortion, collecting $10,000 if successful.
“If they could make life miserable for an insurance company, [then insurers] will avoid doing it,” Annas said.
Other legal experts said insurers or employers could conceivably face legal issues depending on the way state laws are written. Harvard Law professor Laurence Tribe cited efforts by states several decades ago to make it a violation to take underage girls outside the state to evade local parental notification requirements for abortions.
“There are numerous ways in which states can try to restrict interstate travel to circumvent their pro-life measures. Those restrictions are likely to get challenged,” he said. “I anticipate a huge amount of confusing litigation, which is going to make life difficult for lots of women and girls and their families.”
While questions remain for out-of-state employees and members, abortion coverage is largely assured for in-state residents.
Blue Cross Blue Shield said both surgical and medical abortions are a covered benefit under standard plans. Though some groups, such as religious organizations, have riders to limit abortion coverage to certain circumstances, they are in the minority, Blue Cross said.
Members of the Massachusetts Association of Health Plans, which counts 15 of the state’s largest health insurers besides Blue Cross, also largely includes abortion coverage for fully insured people, though it, too, offers some riders for religious organizations to opt out. Abortion coverage is also part of the standard benefits package provided to self-insured employers, who pay for their own health insurance claims.
“In our state, we don’t see many employers opting out of coverage unless they have a religious objection,” said Lora Pellegrini, the association’s chief executive. “There’s such overwhelming public support for abortion rights, I’m not sure we’ll see a shift in employer sentiment.”
Abortion coverage is also part of a standard benefits package that must be included in policies offered on the state’s health connector, which sells plans for individuals and small businesses.
MassHealth, the state’s Medicaid program, provides insurance coverage, with no co-pays, when the “abortion is a medically necessary abortion,” according to state law. That term is defined very broadly, including abortions that physicians deem are necessary in light of all factors affecting the member’s health.
For most abortions, MassHealth pays providers with state tax money; it can only use federal health care funds for certain types of abortions, such as those that threaten the life of the mother or for victims of rape or incest.
Despite the existing coverage Massachusetts insurers offer, some say the threat of a repeal of Roe makes it important to mandate abortion coverage by state law, instead of leaving those decisions to insurance companies.
“That’s a choice the insurance companies are making,” said state Senator Cindy Friedman. “As soon as it doesn’t benefit them they will stop doing it. There is nothing permanent in what insurance companies do unless we mandate the benefit.”