SCOTUS rules on the abortion pill: Implications for employers 

SCOTUS rules on the abortion pill: Implications for Employers
June 13, 2024

In a ruling today, the Supreme Court preserved  the FDA approval and current regimen for mifepristone, otherwise known as the abortion pill. In a unanimous decision, the Court dismissed a challenge to the FDA’s protocol for prescribing and dispensing the drug on procedural grounds. The Court held that the parties challenging the FDA lacked standing, meaning they didn’t have a “personal stake” in the dispute. However, the Justices left the door open to future challenges. Headlines about this case may prompt plan sponsors concerned with providing access to the full range of reproductive health services to review benefits coverage, documentation and communication. We offer some considerations below.

Today’s ruling in FDA v. Alliance for Hippocratic Medicine is significant, as medication abortion—typically a two-drug regimen of mifepristone and misoprostol—accounts for nearly two-thirds of all abortions in the United States, which have risen 11% since 2020, despite the Supreme Court upending the federal right to abortion in 2022. Given the prevalence of medication abortions, a different outcome from the Supreme Court could have significantly restricted abortion access, impacted miscarriage management nationwide, and weakened the FDA’s authority to regulate a wide range of drugs.

Abortion pill coverage in group health plans

Currently, coverage for abortion—including medication abortion—varies considerably from one employer to the next because of state laws and other factors.  At least 10 states require private insurance plans to cover abortion, while at least 10 states prohibit coverage. Sponsors of self-insured plans are free to decide if and how to cover abortion, and our survey from 2022 suggests nearly half cover abortion without restriction – although close to 25% of respondents weren’t sure how abortion was covered, if at all. A 2023 KFF Employer Health Benefits Survey found that 40% of those responding on behalf of large employers (200 or more workers) didn’t know if their largest health plan covered abortions.

Coverage of medication abortion specifically can be even harder to pin down. Historically, coverage for mifepristone was under the medical plan (rather than the pharmacy plan) because it could only be prescribed by a certified physician after an in-person visit, and it could only be dispensed by a clinic, medical office or hospital under the supervision of the certified physician. But by 2021, the FDA allowed the drug to be dispensed by mail following a virtual visit with a certified clinician and in 2023, the FDA formally changed the regimen to allow certified pharmacies to dispense mifepristone. This means that if an employer group health plan covers abortion, participants should be able to fill a prescription for mifepristone in person at a pharmacy or have the medication mailed to them.

Yet even when an employer intends to provide comprehensive abortion coverage, participant access to abortion medication can be challenging. Walgreens announced in March plans to begin dispensing mifepristone in a limited number of states and CVS is currently dispensing mifepristone in 23 states, but neither has plans to mail the medication. GenBioPro, the maker of the mifepristone generic, publishes a list that contains over 25 regional certified pharmacies, but they may not be in-network for a large employer plan. As for national mail-order pharmacies (for example, Express Scripts, Optum, Caremark, Carelon), none of them are certified to dispense mifepristone or are in the process of becoming certified. So, unless a plan member lives near an in-network CVS or Walgreens, they may be paying out-of-network prices whether they obtain the medication in person or by mail. The cost of a medication abortion varies depending on location, generally from $500 to $800.

Implications for employers

Reproductive health has been a central topic for employers interested in enhancing women’s health benefits—and women’s health and wellbeing —for several years now. Our Survey on Health and Benefit Strategies for 2025 found that 62% of employers with 500 or more employees will offer one or more benefit or resource to support women’s reproductive health next year. Inclusive reproductive health and family planning can also be an impactful part of an employer’s diversity, equity and inclusion strategies. DEI and women’s reproductive rights continue to be important to employees as well. In our 2023 survey of more than 4,000 US workers, approximately 65% indicated that each of these issues is important (this increases to nearly 80% when selected for younger workers).

Employers reacting to the SCOTUS decision could consider these steps:

  • Review medical and pharmacy plan coverage of mifepristone. Inclusion of mifepristone is not always the default standard in self-insured pharmacy plans and could be automatically excluded unless the employer sponsor specifically inquires about coverage.
  • Review participant access to mifepristone when covered by the plan. Work with your carriers, third-party administrators and pharmacy benefit managers to determine if the in-network pharmacy providers (brick-and-mortar and mail-order) are certified to dispense mifepristone or are in the process of being certified.
  • Review coverage for abortion care via telehealth. Telehealth for medication abortion first came on the scene during the COVID-19 pandemic and has grown rapidly since with a similar increase in the number of facilities (virtual and brick-and-mortar) providing the option to have abortion pills mailed.
  • Review the need for tailored point solutions that can provide in-network telehealth and mail-order abortion medication options where medical and/or pharmacy plan vendors can’t provide the desired coverage.
  • Review medical travel benefits. States that border states with abortion bans have seen surges in abortion volume since Dobbs, indicating people are traveling across state lines to access care. Employer medical travel benefits can address costs associated with the travel, lodging, and meals for plan participants with limited access to abortion providers. Our Survey on Health and Benefit Strategies for 2025 found that 39% of employers are offering medical travel benefits for abortion.
  • Review benefit utilization and employee-facing plan documents for a clear description of abortion coverage and medical travel benefits. Consider if additional communications or support mechanisms (like a concierge service) would help plan participants to use or be more comfortable using employer benefits for abortion services.

Conclusion

This issue is likely to be before the Supreme Court again soon. Challenges to state laws restricting the use and availability of the pill (beyond the FDA rules) are currently working their way through the court system. Notably, during oral arguments for this case, Justices Thomas and Alito invited challenges to the distribution and mailing of mifepristone under the Comstock Act—an 1873 federal law prohibiting the mailing of “articles used to produce abortions.”

The abortion pill remains legally available (if not always readily available) to patients in the 24 states that don’t ban abortion or restrict access to the medication. Employers wanting to provide access to the abortion pill in these states may wish to review health plan coverage features and improve employee-facing plan communications. 

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