Health Law & Policy
| Jun 30 2022

Medications for Pregnancy Termination in a Post-Dobbs World

Raymond Brown
Partner, Mercer Health
Katharine Marshall
Principal, Mercer's Law & Policy Group

After the US Supreme Court ruled that there is no federal constitutional right to abortion in the Dobbs vs. Jackson Women’s Health Organization case, President Biden, Attorney General Garland and HHS Secretary Becerra pledged to protect access to medication abortion. These statements have prompted a number of questions for employer-sponsored health plans.

The most common medications used for pregnancy termination in the US are Mifepristone (Mifeprex) and Misoprostol. Both medications are also used in miscarriages and can be prescribed for other non-pregnancy related conditions. In his statement, Garland said, “[T]he FDA has approved the use of the medication Mifepristone. States may not ban Mifepristone based on disagreement with the [US Food and Drug Administration] FDA’s expert judgment about its safety and efficacy.” Garland pledges the Justice Department will “use every tool at our disposal to protect reproductive freedom.” Ultimately it will be up to the courts to decide whether, and to what extent, a state may restrict access to abortion medications within its borders.

Meanwhile, employer plan sponsors must move forward. The first step is to determine if these medications are covered, and if so, if the coverage is under the medical or pharmacy plan. Historically they have been covered under the medical plan as opposed to the drug plan because accessing them required a visit with a clinician. The second step is to determine if the group health plan, or pharmacy plan, will cover these medications in the near future, as the dispensing requirements have changed recently.

Mifepristone and Misoprostol are approved for pregnancy termination up to 70 days (10 weeks) into pregnancy. Prior to the COVID-19 public health emergency, Mifepristone could only be dispensed in-person by a certified prescriber. Now, certified prescribers and certified pharmacies are permitted to dispense the pills to a patient in-person or virtually and the pills can be sent by mail. The manufacturer certification process for pharmacies is still in development.

Despite the new rules, distribution challenges remain. Mail-order pharmacies who haven’t historically been part of the distribution channel are evaluating their role in future distribution. Pharmacies in states that ban abortion may not even apply for certification. And, in states that don’t ban abortion, some pharmacies are choosing not to carry the medications. Those that choose to become certified may not make a public announcement, making it hard for individuals to identify where they can obtain the medication.

If the employer-sponsored health plan wants to continue, or add, coverage for pregnancy termination medications, consult legal counsel to make sure coverage and access complies with any applicable state law. Employers covering these medications should work with their trusted advisors to understand how the PBMs and carriers are supporting participant access.

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