Introduction
In the summer of 2022, as reproductive rights advocates mourned the demise of the constitutional right to abortion after Dobbs v. Jackson Women’s Health Organization,
Walmart and other nationwide corporations announced they would cover some legally available abortion services and related travel under their health plans.
Walmart’s actions seem like a victory for reproductive freedom. Walmart is the largest private employer in twenty-one states
and employs 1.6 million people in the United States,
not including their employees’ spouses and dependents. The corporation is also based in Arkansas
—a state that, after Dobbs, bans abortions with an exception to save the mother’s life, but not for rape or incest.
Walmart’s actions could well save some lives.
Walmart’s decision surprised many, given the company’s significant financial contributions to state legislators responsible for enacting trigger laws, which became enforceable bans after Dobbs,
and its historically stingy approach to employee insurance coverage. For example, until 2010, Walmart had resolutely opposed providing insurance to its hourly workers, instead relying on state Medicaid programs to cover its lower-waged employees.
After the Affordable Care Act (ACA) required that large employers offer health benefits to their employees or else pay a tax, Walmart dropped health benefits for many of its part-time workers because the mandate required coverage only for people working thirty hours or more per week.
Walmart’s limited expansion of abortion benefits in reaction to Dobbs is just one example in a long history of some private employers taking high-profile positions on reproductive health issues through their employees’ health insurance benefits.
Hobby Lobby memorably fought against covering contraception under its employer health plan, culminating in Burwell v. Hobby Lobby Stores, Inc. in 2014.
A private, for-profit craft store chain with over 43,000 employees across forty-seven states,
Hobby Lobby is owned by David and Barbara Green, Christians who object to abortion.
Because the Greens believed that certain FDA-approved oral contraceptives and intrauterine devices (IUDs) effectively facilitated abortions, they refused to cover those offerings in their employee health plan.
The ACA required group plans to cover these contraceptives as “preventive care,”
however, so the Greens challenged the enforcement of this provision.
Justice Samuel Alito’s majority opinion recognized the right of a closely held corporation to exercise its owners’ religious beliefs and thereby exempted Hobby Lobby from providing federally mandated contraception coverage.
Reproductive rights advocates might laud Walmart and loathe Hobby Lobby in these circumstances. But this Article exposes the real villain in these stories: the legal and regulatory infrastructure of health insurance in the United States, which grants employers wide latitude over access to reproductive health care and the health and autonomy of their employees. When Walmart wants to expand abortion coverage for its employees, the law allows it. When Hobby Lobby wants to avoid a federal statute requiring contraception coverage for its employees, the law allows that, too. When either company wants to exclude coverage for assisted reproduction, the law effectuates that choice.
This permissiveness is a problem for reproductive autonomy as well as the broader concept of reproductive justice, which encompasses the right to not reproduce and “also the right to have children and to raise them with dignity in safe, healthy, and supportive environments.”
Due to the prohibitively high cost of health care in the United States, employer-sponsored insurance is practically the gatekeeper for over 100 million people’s access to all kinds of health care, including reproductive services.
Uninsurance and underinsurance remain entrenched problems that inhibit access to health care services generally and stymie the human flourishing and social benefit that effective care can enable.
Access to reproductive care is particularly important because it can have acute consequences for individuals’ physical and mental health, financial security, participation in society, and self-determination, as the reproductive justice movement directly recognizes.
As the primary source of third-party funding during most people’s reproductive years, employers play a dominant role in this especially profound aspect of human health and flourishing and, on the whole, have made very few shifts in response to Dobbs.
This Article proceeds in three parts: First, it lays out the legal infrastructure that gives employers discretion in covering reproductive care; second, it exposes the power dynamics that put employer-sponsored insurance at odds with reproductive justice; and finally, it interrogates a range of reforms that could decouple the funding of reproductive care from employers.
Part I details the legal landscape that gives employers near-complete discretion over the coverage of reproductive care.
Employer-sponsored insurance coverage for reproductive health services varies widely based on the size and type of the employer institution and its plan design choices. The variation is made possible by a complex legal infrastructure that mostly insulates employers’ discretion over the extent of coverage for reproductive care.
Reproductive exceptionalism
—the practice of lawmakers and regulators treating reproductive services differently from other medical care—infuses insurance regulation, giving both public and private employers greater leeway to restrict coverage for reproductive care than other medical services.
Statutory and constitutional accommodations for religion widen the holes in coverage by exempting religious institutions—and even secular for-profit businesses such as Hobby Lobby—from certain coverage mandates.
Federal antidiscrimination statutes and state and local laws constrain discretion, but in limited ways that may sometimes give way to religious objections.
Public-sector employers, responsible for covering thirty-seven million people in the United States, are exempt from many of the regulations governing commercial insurance and so have even wider latitude to choose which services to cover.
These many loopholes and forces of exceptionalism have relegated the provision of reproductive care into separate funding and separate clinical settings, most apparently through treatments paid for by patients out of pocket,
Title X federally funded family-planning clinics, Planned Parenthood clinics, and privately funded independent abortion clinics.
Dobbs further complicated the intricate legal landscape by allowing states to ban the provision of abortion care, even when insurance covers it.
This patchwork sows chaos for reproductive care access broadly,
including for employer plans that already covered aspects of abortion care. Employers typically design their plans to promise coverage for one year at a time, beginning on January 1 of the next year.
When the Supreme Court formally issued the Dobbs opinion on June 24, 2022,
state trigger laws immediately went into effect, and new bans quickly followed, forcing employers and insurers to consider the immediate impacts on their coverage in the middle of a plan year and to calibrate their responses.
For those in states that further restricted or criminalized abortion, employer plans that covered some abortion services had to determine whether and how to expand coverage to account for the additional travel and leave required to access those services across state lines
as well as how to safeguard their claims data, lest those data potentially implicate employees or administrators.
Part II explores employers’ coverage decisionmaking, revealing how coverage of reproductive benefits is informed by employers’ business and personal interests rather than their employees’ reproductive autonomy. Firms’ incentives frequently misalign with the robust coverage of reproductive services. Companies perceive pregnancy as costly and disruptive, pointing to lost productivity and the need to accommodate pregnant workers.
Pregnancy also increases employers’ insurance premiums; childbirth is one of the costliest medical procedures for employers annually and results in more dependents for the plan to cover.
But employers have also resisted covering contraception for decades
—long before Hobby Lobby publicly took its fight to the Supreme Court. When employers refuse to cover reproductive care, they externalize the costs of that care onto public programs or the employees themselves.
Although employers’ interests may at times align with some employees’ choices, this interest convergence is fragile and ultimately subordinates individuals’ choices to the dominant forces of an entity’s commercial interests. Decoupling health care from employment would begin to remedy this subordination, which contradicts reproductive justice.
Other health benefits models, including public programs like Medicaid, also impose burdens on reproductive justice and may carve such care out of their ambit. Yet employers pose a greater threat to reproductive justice given the power they exert over employees and their various conflicts of interest.
Part III offers tough but essential considerations for the future of health reform if it is to meaningfully support reproductive justice. Public-option and single-payer reforms would directly decouple employers from reproductive care access by placing health care coverage in the hands of government officials. Based on how federal and state governments already act in their capacity as employers and insurers, however, the outlook for reproductive justice is still bleak. As an insurer, the federal government has long excluded abortion from coverage in its employee benefits plan.
Through the Hyde Amendment, the federal government has also avoided paying federal funds toward abortions for almost fifty years, and politicians have constantly raised objections to abortion funding, even by stymieing measures unrelated to health care.
Though some states reject Hyde and cover the full range of reproductive care for their employees, a majority have enacted their own Hyde-style restrictions.
Any plan that places funding discretion in the hands of the government—or any third-party payer—must contend with this reality.
The direct-care model already serves as an alternative to traditional insurance-based, third-party funding. In direct care, the funding flows from the funder directly to the provider without a claims processor or insurance contract as an intermediary. Thus, providers receive payment (or salary) to treat whatever patients they serve, for whatever services fall within their scope of practice. For example, Title X clinics provide patients with nonabortion family-planning services, directly funded by federal grants.
Planned Parenthood and other independent private clinics, meanwhile, provide a fuller range of services, including abortion, using private funding (typically from nonprofit organizations).
Privately funded direct care largely removes the intervening influence of employers and political actors, but it nonetheless reflects and perpetuates the reproductive exceptionalism that undermines autonomy by isolating and treating differently from any other medical service the financing of reproductive care.
Using the framework of confrontational incrementalism,
this Article assesses whether the incremental changes that appear most feasible actually advance or thwart the ends of reproductive justice. This framework counsels that incremental reforms should be assessed based not just on their feasibility but ultimately on whether each increment also confronts the sources of subordination and inequity or accommodates them.
Applied to the reproductive health insurance context, the assessment compares the impacts on reproductive justice of incremental reforms that would merely constrain employer discretion in the current system with measures that would instead supplant employers’ influence over health care funding and establish universal public programs.
The assessment further compares the potentially subordinating influences of private health care funding reforms and government funding reforms.
Applying these perspectives to recent experiences with state-level single-payer proposals, the Article concludes by observing some narrow openings for eroding reproductive exceptionalism to advance reproductive justice and by arguing that achieving universal care reforms that are feasible, durable, and equitable may require an embrace of reproductive justice.