In the United States, you can get a tax break for your abortion if your total health care costs are high enough. That didn’t change with the Supreme Court’s decision last week.
If you work for a non-government employer that provides health insurance that covers abortion, the federal government helps there, too. That hasn’t changed.
If you’re privileged enough to have a good benefits package through your job, you can use an employer-sponsored flexible spending account to set aside money that can pay for an abortion and related travel expenses, and you don’t have to pay federal income taxes on the money you put into the account.
That also didn’t change with last week’s ruling, which means federal employees, including clerks for Supreme Court justices, can use federally subsidized funds to pay for abortions.
So what needs to change for these subsidies to go away? Here’s a crash course on how they work, some surprising places where there are no subsidies at all, and an explanation of what needs to happen to change any of that.
Employer health insurance
Employer-provided health insurance typically works like this: your employer pays part of the cost and you pay the rest.
The federal government makes it easy by shielding your cost share — the line on your paycheck that tells you what’s gone before your benefit lands in your bank account — from personal income tax, as long as your employer sets up your plan correctly.
So if your plan pays for an abortion, the federal government has made it easier with what is effectively a rebate. (By the way, this doesn’t work for most federal employees; we’ll get to those in a moment.)
The US Internal Revenue Code governs the tax-deductible status of health insurance premiums. And the code can only be changed by an act of Congress, subject to presidential veto.
Tax credits for medical expenses
People who itemize deductions on their tax returns can deduct medical expenses as long as they add up to more than 7.5 percent of their adjusted gross income.
And abortion — whether by pill or procedure — is a medical expense. Internal Revenue Service Publication 502 defines a medical expense as “expenses for the diagnosis, treatment, mitigation, cure, or prevention of disease and for the purpose of affecting any part or function of the body.”
(Incidentally, Publication 502 is also the guide to allowable expenses for those of you with health savings accounts—the tax-advantaged vehicles you can contribute to only if you also use a high-deductible health insurance plan. )
People who need to travel for an abortion may spend more on a trip to a clinic than on the procedure itself. Most travel expenses are also allowable medical expenses in this context, according to the IRS, subject to certain limitations.
How can the list of eligible medical expenses be changed? Again, an act of Congress would be required — or an aggressive change in guidance by the IRS under, say, a different presidential administration. Republican senators are trying to remove abortion from the list.
Flexible spending accounts
Millions of people have access to something called a Health Care Flexible Spending Account. Here, an employer—along with an outside administrator—allows you to set aside money from your paycheck up to annual limits on which you don’t have to pay federal income taxes. You can then use that money for eligible medical expenses that your health insurance doesn’t cover.
Post 502 rules here too, at least in theory. Employers have the ability, if they wish, to exclude certain expenses that they do not want their flexible spending accounts to cover. These exceptions sometimes include abortion.
Can more employers turn it off? Here’s what might worry them: Your medical procedures must be legal.
So consider this possibility: An employee in a state where abortion is almost entirely illegal orders abortion pills to her home and then presents the receipt for reimbursement from the Flexible Spending Account. Are costs covered? Maybe, although at some point a state might try to prosecute someone who takes the pills.
Then there is the employee who travels from a state where abortion is almost entirely illegal to perform an abortion in a state where it is still legal. This procedure may seem good for reimbursement, but which country’s laws should prevail? Or it might depend on where the company’s headquarters are – maybe in some third country? Again, the risk here may ultimately lie with the person obtaining the abortion, not the employer or plan administrator.
We refer cost eligibility questions to HealthEquity, the lead administrator of these third-party plans. He seems willing to approve abortion-related spending in all of the above cases, at least for now.
Here’s the company’s reasoning: When it comes to employee benefit plans, federal tax laws and regulations should be the primary rulemaking mechanism. And on June 24, Attorney General Merrick B. Garland issued a statement noting that states cannot prevent residents from traveling to another state for treatment. He also pointed out that abortion pills are federally approved.
“They should still be legal to obtain even for individuals in states that prohibit abortion,” Nikki Brown, HealthEquity’s vice president of advocacy and public affairs, said, citing Mr. Garland’s statement.
This makes some logical sense, but no entity in a position of power has yet weighed in with specificity.
“We’re only six days away from a decision that doesn’t talk about benefits,” said William Sweetnam Jr., legislative and technical director of the Employers’ Council on Flexible Compensation. He was a tax adviser to the Treasury Department, where he and his subordinate lawyers asked questions like these.
Mr. Sweetnam wondered if there might be a backlash against companies that do allow people to pay for abortions through flexible spending accounts (assuming consumers will even want to leave a paper trail in this new legal environment).
“Companies really need to talk to their legal counsel to determine what their risk tolerance is in providing these kinds of benefits,” Mr. Sweetnam said.
Amy M. Gordon, a partner at Winston & Strawn, is one of those benefits attorneys. “We can’t say definitively that ‘this’ is the answer, and there’s no risk in relying on that answer,” she said. “I really think it will depend on enforcement.” Future regulatory guidance will also matter.
Again, Congress has the ability to change the list of covered procedures here if it has the votes. A few years ago, menstrual products became an allowable expense for flexible spending accounts.
Flexible spending accounts don’t help people who don’t work for employers who offer them, and people on lower incomes, part-time incomes or freelancers are more likely to fall into this category. If they qualify for Medicaid, the public health care program that is primarily for lower-income households, both federal and state money pays for the program. States then do the administration — and ultimately decide how broad coverage will be.
Federal law does not allow federal funds to be used to pay for abortions except when the pregnancy is the result of rape or incest or causes a life-threatening condition for the woman.
States can choose to cover abortion in Medicaid plans outside of these limited circumstances outlined in what’s known as the Hyde Amendment, as long as they fund it with state funds. Sixteen states had such policies as of last year, according to the Kaiser Family Foundation.
Hyde Amendment principles have also made their way into federal employee benefit programs. These workers do not have coverage for most abortions in their health insurance plans, although Hyde coverage has not yet been extended to their flexible spending accounts. Could it happen? Many dozens of people are probably already trying to do it in a way that would survive Supreme Court scrutiny.
Some federal officials are now pressuring the Biden administration to give all such workers paid time off — that doesn’t come from sick or vacation time — to travel for abortions.