Managed Care Outlook 2023

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Over the next 12 months, courts will decide whether state constitutions protect a woman’s right to an abortion, and state prosecutors will likely decide just how far to go in enforcing their states’ criminal abortion restrictions, including whether to prosecute health plans for covering abortion-related services.

Although any abortion-related decision will likely be appealed, courts will begin ruling on the constitutionality of existing criminal abortion bans this year. These rulings will likely create further tumult for health plans attempting to assess their potential exposure under direct or derivative theories of criminal liability.

Then, layer in the politics of prosecution. While the “red wave” did not sweep across the country in November as predicted, conservative politicians still control 22 states across the country. Conservatives also account for 56 percent of the state attorneys general.

For decades, conservatives have taken anti-abortion policy positions. Without Roe to motivate the conservative electorate, the next wave of abortion politics may be abortion-related prosecutions, particularly for state attorneys general with higher political aspirations.

Alabama and Idaho, for example, have statutes that could be construed to specifically criminalize aiding and abetting an abortion. Similarly, Arizona, Delaware, Oklahoma, South Dakota and Texas already have statutes criminalizing procuring or “furnishing the means of procuring” an abortion. Furthermore, every state that criminalizes abortion has general aiding and abetting or conspiracy statutes that could be used to target payors who cover abortion-related services, including abortion-inducing drugs, abortion procedures or travel benefits.

Issues for payors may arise when call centers or members are in states that have criminalized abortion, particularly if payors acquire knowledge about abortion-related services before the member obtains the service. If states attempt to apply their abortion laws extraterritorially, even payors operating in states where abortion is legal could find themselves in the crosshairs.

Key takeaways
  • Courts will decide whether pre-Roe v. Wade criminal abortion bans are enforceable.
  • The success of state prosecutors’ decisions to prosecute and secure the conviction of non-providers, like health plans, under direct or derivative theories of criminal liability will likely become clearer in 2023.
  • The 2022 midterms have left more questions than answers about which direction politics will push prosecutors.
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