State Action to Protect and Promote Abortion Access in State-Regulated Health Plans

By Rachel Swindle and Karen Davenport

In the 2022 decision Dobbs v. Jackson Women’s Health Organization, the U.S. Supreme Court reversed the long-standing precedent of Roe v. Wade, taking away a previously recognized constitutional right to abortion. Dobbs did not outlaw abortion services, but the decision allows states to impose restrictions and bans previously deemed unconstitutional. Over the last year, several states have limited abortion access or prohibited abortion services entirely. Other states have taken steps to preserve abortion access, such as enshrining abortion rights in state constitutions. In addition to protecting the availability of abortion care, states can pursue targeted policies to expand access to abortion services in state-regulated health insurance plans.

Abortion Utilization, Cost, and Coverage Today

Utilization

Abortion is a common medical procedure; according to the most recent analysis by the Guttmacher Institute, nearly one in four women will terminate a pregnancy prior to age 45. For comparison, one in four women will receive a coronary heart disease diagnosis while one in eight women will be diagnosed with breast cancer in their lifetime.

Cost and Coverage

Abortion costs vary significantly based on the type of abortion (medication or procedural), setting (free-standing clinic or hospital), trimester of pregnancy, and whether the patient pays for the procedure themselves or through their health insurance. In 2020, median charges for self-pay patients were $560 for first trimester medication abortions, $575 for first trimester procedural abortions, and $895 for abortions in the second trimester. But costs can be much higher—sometimes thousands of dollars—for those who need hospital-based care to terminate a pregnancy.

Even insured patients may face these costs. A survey of abortion patients in non-hospital settings from 2021­–2022 found 11.4 percent of respondents used private insurance to pay for abortion care even though a third of respondents had private coverage. In an earlier study, the most common reason privately insured patients cited for not using their health plan to pay for abortion care was that the procedure was not covered. In a further indication that privately insured patients may not have coverage for abortion care, KFF’s 2019 Employer Health Benefit Survey determined that 10 percent of workers with employer-sponsored health insurance work for firms that asked their health plan or third-party administrator to exclude coverage for abortion care in some or all circumstances. Consumers covered through the Affordable Care Act (ACA) Marketplace also face insurance-related barriers to abortion care. In 2020, consumers in 33 states could not access a Qualified Health Plan (QHP) on the ACA Marketplace that covered abortion.

States Can Protect and Promote Abortion Access Within State-Regulated Plans

States remain the primary regulators of private health insurance. Congress precluded the ACA from pre-empting state laws related to abortion coverage, other than an existing exemption for “self-funded” employer health plans. Accordingly, states can promote abortion access for residents enrolled in health plans sold on the ACA Marketplace as well as “fully insured” employer plans by pursuing a number of policy changes.

Requiring State-regulated Plans to Cover Abortion

States can require QHPs and other state-regulated health plans to cover abortions. According to the Guttmacher Institute, eight states currently require private health plans to cover abortion services. Eleven states restrict abortion coverage in all state-regulated plans, typically by limiting coverage to circumstances such as “life endangerment,” while another 14 states specifically restrict or prohibit abortion coverage in QHPs alone. The remaining states—such as Connecticut and Minnesota—neither require nor prohibit state-regulated plans from covering abortion. Among the states that require state-regulated private health insurance products to cover abortion services, some, such as Oregon, have required coverage for years, while others, such as Massachusetts, have only recently codified this requirement. Most recently, New Jersey’s Department of Banking Insurance announced the adoption of regulations extending the abortion coverage requirement for state-regulated individual and small group market plans, which had been in place since the beginning of this year, to the fully insured large group market in the state.

Protecting Privately Insured Consumers from Out-of-Pocket Costs

States can also take steps to reduce or remove out-of-pocket costs associated with abortion care. According to the Guttmacher Institute, all states mandating abortion coverage in state-regulated plans also restrict insurers from charging cost sharing for abortion care, but the scope of protection varies by state. For example, while Oregon prohibits state-regulated plans from imposing any cost sharing on abortion care, New York only bans cost sharing for “in-network abortions” (allowing insurers to charge out-of-network cost sharing) and permits high-deductible health plans to apply the deductible to abortion services. Research has found significant regional variation in whether abortion providers accept insurance, making restrictions on out-of-network cost sharing requirements a critical consumer protection in some states.

Limiting or Removing Barriers to Care for Enrollees

To further improve abortion access, states can limit or prohibit benefit designs and plan practices that pose obstacles for enrollees seeking abortion care. Previous analyses have found that QHPs impose a range of limits on abortion coverage, such as annual and lifetime limits on the number of abortions a member may receive, restrictions on the type of abortion services they cover (i.e., procedural versus medication abortion), or limitations based on the duration of pregnancy. In most states, private health plans can also apply utilization management techniques to abortion care, such as prior authorization or referral requirements. Some states have restricted or banned certain utilization management practices. For example, as of 2023, California prohibits state-regulated plans from applying lifetime or annual limits, prior authorization, or referral requirements to abortion care. State insurance regulators, such as those in Massachusetts and California, have reinforced these statutory restrictions through implementation and enforcement activities.

Facilitating Easier Marketplace Enrollment

When Marketplace plans cover abortion—whether in response to a state benefit mandate or in states where they are allowed but not required to cover abortion services—federal law prohibits the use of federal funds to pay for abortion coverage beyond the circumstances of rape, incest, or life endangerment. This means that federally funded premium subsidies available to Marketplace enrollees cannot cover the portion of the premium used to insure for costs related to most abortion care. In addition, insurers offering QHPs must segregate premium payments for abortion coverage from payments for coverage of all other services, and they may separately itemize or separately bill premiums related to abortion coverage. Although the portion of Marketplace premiums attributable to abortion services in plans that cover abortion is small—only around $1—nominal premiums can reduce enrollment and retention in health plans.

States can enact policies to offset this cost and reduce the administrative burden of enrolling in Marketplace plans. California, for example, offers a $1 per member per month premium subsidy to cover the portion of the premium attributable to abortion services. Maryland provides a similar premium subsidy for a narrower population—Marketplace enrollees between the ages of 18 and 35 who are eligible for a 0 percent premium contribution under the state’s Young Adult Subsidy Program.

Conclusion

When the Supreme Court issued the Dobbs decision, they allowed states to determine abortion policy. While many states have wielded this power to ban or restrict abortion, others have taken the opportunity to protect and improve access to this basic and crucial health care service, including through their role as primary regulators of private insurance. These protections include benefit mandates, prohibiting or limiting cost sharing for abortion services, preventing restrictive benefit design and utilization management techniques, and covering the portion of Marketplace premiums related to abortion coverage. With public support for abortion rights at an all-time high, state policymakers have an opportunity to protect and improve abortion coverage for residents enrolled in state-regulated health plans.