2023 State Legislative Roundup: Major Wins on Improving Abortion Coverage
The first year after the Dobbs v. Jackson Women’s Health Organization decision threw the abortion access landscape into chaos. While states hostile to abortion access continue to enact increasingly extreme abortion bans and restrictions, advocates secured major wins to protect and expand access to abortion in states across the country that can and should be celebrated.
One trend in state legislative activity in 2023 focused on expanding and improving abortion coverage – a reflection of the need to prioritize building equitable abortion access in the post-Dobbs era. This blog outlines the major victories we saw in improving and expanding abortion coverage in 2023, including new coverage mandates, cost-sharing prohibitions, and improvements in reimbursement for abortion providers.
Coverage Expansions
Medicaid Coverage
Rhode Island made history by becoming the newest state to enact Medicaid coverage of abortion. The new law also updates the statutory language around pregnancy coverage to be gender inclusive and repeals the state’s prohibition on abortion coverage in state employee plans. Comprehensive coverage of abortion for Medicaid enrollees is one of the most important factors in building an equitable abortion access landscape, as it improves access and distribution of abortion fund resources to low income and underserved populations
Private Coverage
2023 also saw substantial improvements in private insurance coverage of abortion. Colorado enacted a law to require abortion coverage in all individual and group plans issued in the state. It also prohibits any cost-sharing requirements, a crucial policy for ensuring there are no cost barriers for people seeking abortion care.
Vermont also enacted a law to require coverage for abortion and gender-affirming care in all state regulated plans. While Vermont already provided abortion coverage for Medicaid enrollees, SB 37 expands this mandate to include all state regulated plans and prohibits any cost-sharing requirements for the mandated abortion coverage. This law will go into effect in 2024.
Finally, in response to the passage of the Freedom of Reproductive Choice Act (FRCA), New Jersey’s Department of Banking and Insurance implemented new regulations in 2023 that require abortion coverage in all state-regulated plans. Prior to implementation, the Department published a study on the need for regulatory action on abortion coverage (as required by the FRCA), which found that the coverage mandate would materially improve access to reproductive health care while having no impact on insurance premiums.
Medication Abortion Coverage
Attacks on medication abortion access continue to increase, with the spotlight on the ongoing litigation challenging the Food and Drug Administration’s (FDA) 2000 approval of mifepristone, one of the two drugs used in the most common medication abortion regimen. Depending on the final outcome of the case, providers may be forced to shift to off-labeling prescribing of medication abortion, including the misoprostol-only regimen that is commonly used internationally. Coverage of off-label prescribing varies depending on the state and we have seen advocates take preemptive action to ensure state abortion coverage mandates apply to all medication abortion regimens.
For example, Illinois enacted a law that updates the state’s definition of “abortifacient” to more accurately reflect the full scope of service delivery methods, expanding the original definition from medications that are “administered” by a provider (which may imply an in-person interaction) to those that are “prescribed or ordered” (which would include telehealth service delivery and pharmacist dispensing). It also clarifies that the state’s abortion coverage mandate includes coverage for off-label prescribing. This ensures that insurers must continue to cover medication abortion even if providers are forced to shift to off-label regimens.
New York similarly took action to ensure the state’s abortion coverage mandate includes medication abortion even if litigation forces the FDA to rescind approval of mifepristone. The New York bill clarified that coverage for abortion includes “any drug prescribed for the purpose of an abortion, including both generic and brand name drugs” so long as the drug is recognized in one of three major reference compendia (the WHO Model Lists of Essential Medicines, the WHO Abortion Care Guidance, or the National Academies of Science, Engineering, and Medicine Consensus Study Report).
Coverage Improvements
Cost-Sharing Prohibitions
Several states that already had coverage mandates on the books took steps to improve the quality of abortion coverage by eliminating cost barriers for abortion seekers. Maine, Vermont, and Washington all implemented laws to prohibit cost-sharing for abortion coverage. These prohibitions mean that an individual seeking an abortion cannot be required to pay a co-payment or forced to meet their deductible in order to have their services covered. The average deductible for an individual with employer-sponsored insurance is around $2000, while the average cost for abortion can range anywhere from $500 to well over $1000. That means the average person would essentially have to pay out of pocket for their abortion if they were not close to hitting their deductible. This kind of out-of-pocket cost can be catastrophic for people with low incomes or may force people to spend time collecting the money they need to pay for their care, pushing them further into their pregnancy and escalating the costs. Eliminating out-of-pocket costs for people seeking an abortion is a crucial step toward ensuring all people can access abortion, regardless of their income.
Reimbursement Improvements
Two states took action to improve reimbursement of abortion services in Medicaid, as sustainable reimbursement is crucial to ensure providers can meet the increased demand in a post-Dobbs world. As a part of the most recent budget cycle, Minnesota recently increased reimbursement rates for family planning and abortion providers – the first time the state had raised the rates in a decade. California’s Department of Health Care Services also announced permanent changes to Medi-Cal’s coverage and reimbursement policies for medication abortion. These changes included bringing the state’s reimbursement policy in line with the most up-to-date clinical guidelines and allowing providers to receive full reimbursement for telehealth service delivery regardless of whether or not an ultrasound is performed when not medically necessary. Ensuring coverage and reimbursement of telehealth is essential to facilitate the sustainability of this type of care and maximize the potential gains in abortion accessibility.
Attacks on Medicaid Abortion Coverage
One notable exception to the positive progress on abortion coverage is Montana. The state tried to roll back abortion coverage for Medicaid enrollees multiple times in the past year. First, the Department of Public Health and Human Services (DPHHS) tried to implement a regulation to require prior authorization for all abortion services, prohibit the use of telehealth, and restrict abortion provision to physicians. Second, the legislature enacted two laws targeting Medicaid abortion coverage: the first codified the same restrictions included in the DPHHS regulation; the second prohibited abortion coverage for Medicaid enrollees outside of the narrow exceptions of the Hyde Amendment. However, attempts to cut off abortion coverage for Medicaid enrollees were swiftly challenged and are currently blocked as litigation progresses.
Conclusion
Comprehensive insurance coverage of abortion services is essential to ensure equitable access and the laws and policies highlighted in this blog are major victories that deserve to be celebrated. Beyond improving affordable access to care, insurance coverage is crucial to normalize abortion as the basic health care service that it is. The National Health Law Program is dedicated to supporting state advocates working on abortion coverage and reimbursement issues – if you have any questions or need technical assistance, please contact Cat Duffy ([email protected]).
