Employers Pause Plans to Make Abortion Pills Easier to Access

Employers that had been considering expanding how their health plans cover the abortion drug mifepristone to make it easier to get are putting those plans on hold as they watch a legal challenge that has reached the US Supreme Court, an employee benefits attorney says.

Employers had been considering adding coverage of the drug as a pharmacy benefit in addition to covering it under their medical plans, Katie Bjornstad Amin, a principal with Groom Law Group, said in an interview. Adding pharmacy coverage would make the drug available through telemedicine, she said.

But that was before an April 7 order by the US District Court for the Northern District of Texas that sought to block the drug’s sale by overturning its FDA approval. That decision, along with an April 12 ruling by the US Court of Appeals for the Fifth Circuit that allowed the drug to continue to be sold but blocked it from being sold through the mail, appears to have put those plans on hold, Amin said.

Blocking mail-order sales of mifepristone, which was approved by the Food and Drug Administration in 2000, would make it more difficult for users to get the drug. Virtual clinics provided 11% of all abortions in December 2022, according to a report by the Society of Family Planning. That figure doesn’t include brick-and-mortar clinics that also mail mifepristone.

The Justice Department has asked the US Supreme Court to intervene. Justice Samuel Alito put a five-day hold on the Fifth Circuit’s restrictions until the high court has more time to decide how to handle the Biden administration’s request for a longer delay. Alito’s hold is due to expire at 11:59 p.m. Eastern time Wednesday.

Pharmacy Coverage

Employers have been covering the pill under the medical portion of their health plan, which generally covers doctor’s visits, rather than through their pharmacy benefits, which cover drugs purchased at retail pharmacies, Amin said.

Adding pharmacy coverage would make the drug available to employees through telemedicine visits, “and then they could go fill at the pharmacy without seeing a doctor in person,” she said.

The appeals court order requires an in-person visit; it doesn’t permit mifepristone to be prescribed via telemedicine, Amin said.

During the Covid pandemic, regulatory relief made it possible to get mifepristone without getting it in person, Amin said. Certified pharmacies could dispense the drug, she said.

The FDA in April 2021 lifted the in-person dispensing requirement for the duration of the public health emergency after health-care providers sued the agency in May 2020, citing safety concerns amid the Covid-19 pandemic.

Following an extensive review of evidence on mifepristone’s safety and effectiveness, the FDA announced in December 2021 that it would permanently nix the in-person dispensing rule. The updated safety program for mifepristone, including a new rule that pharmacies be certified to dispense mifepristone, officially went into effect in January of this year.

Increased Liability?

But the federal courts’ actions aren’t the only thing giving employers pause.

“Now they all have been thinking about expanding it to the pharmacy benefit because of this new certification rule, and they’re worried that might cause them more liability under state law,” Amin said.

In 2022 a Texas Freedom Caucus, which describes itself as state legislators “who want bold action to protect life,” sent a letter to Yvette Ostolaza, chair of the management committee of Sidley Austin LLP, questioning the law firm’s decision to reimburse travel costs of employees “who leave Texas to murder their unborn children.”

The letter threatened “consequences” for the firm, saying Texas law “imposes felony criminal liability on any person who ‘furnishes the means for procuring an abortion knowing the purpose intended,’” including “drug-induced abortions if any part of the drug regimen is ingested in Texas, even if the drugs were dispensed by an out-of-state abortionist.”

If employers pay for employees go out of state to get an abortion, “everything happens outside the state,” Amin said. “But when people are going outside the state getting the abortion pill, then ingesting them back in the state,” the Texas Freedom Caucus’ letter views that as a crime because the abortion would be happening in the state, which would be “aiding and abetting,” she said.

If mifepristone is only covered through a medical plan, at least the first dose of the pill is likely to be ingested in a clinic or a doctor’s office, and the patient is less likely to be taking the drug within a state with abortion restrictions if the plan pays for travel for the entire course of pills, Amin said.

There is a fear by employers that covering the drug through pharmacy benefits could “raise their risk” of criminal liability, she said.

FDA Approval

If the FDA approval of the drug ultimately is struck down, as the district court decision by Judge Matthew Kacsmaryk sought to do, employers wouldn’t be able to cover the drug, at all, Amin said.

Meanwhile, the decision whether to cover the drug falls on larger, self-insured employers that pay most of their own health plan claims and are regulated under the federal Employee Retirement Income Security Act.

But health insurers will make the decision for coverage for fully insured group health plans purchased by employers, Tammy Killion, also a principal with Groom, said in an interview.

For many group health plans “their insurer is going to make a decision about what the insurer is comfortable with, and the group health plan will have to see what the insurer is willing or not willing to do,” Killion said.

‘Hitting Pause’

The district court decision “may have meant folks are hitting pause on whether they want to move it to Rx or not,” Killion, said of mifepristone coverage in an interview.

Natalie Birnbaum, a New York state attorney who does legal policy consulting work for independent abortion providers, said in an interview, “There is no reason that employer benefits should no longer include mife” based on the Texas district court decision.

“All signs point to mifepristone staying on the market,” Birnbaum said. Restrictions on dispensing and prescribing the drug could revert to those in place prior to the drug’s approval in 2000, she said. “It’s more challenging, but that doesn’t mean that it’s not going to be used.”

Attorney Delia Ann Deschaine, a member of Epstein Becker Green, said in an interview that many health-care providers are likely to respond to a possible halt on mifepristone sales by moving to using misoprostol-only for abortions. Misoprostol currently is prescribed with mifepristone, but providers believe it can be used by itself safely and effectively, she said.

Misoprostol is approved by the FDA and is currently prescribed off-label for medication-induced abortions, Deschaine said. “That may be impactful to employers or plans or insurers” grappling with abortion coverage, Deschaine said.