Note: This week, Mitra co-authors her column with constitutional law scholar Jon D. Michaels, a professor at the UCLA Law School.
Last week, the US Supreme Court considered a challenge to a Mississippi law banning abortions after 15 weeks of pregnancy, a law that’s permissible only if the Court agrees to narrow or altogether abandon the long-recognized constitutional right to abortion established by Roe v. Wade.
Mississippi’s argument rests in part on the economic progress of women since that landmark decision was announced almost 50 years ago. In defending the state’s abortion ban, Mississippi attorney general Lynn Fitch characterized the climate before Roe as one with “little support for women who wanted a full family life and a successful career.” Now, she argued, family-friendly policies show “women have carved their own way to achieving a better balance for success in their professional and personal lives.” (During oral arguments, justice Amy Coney Barrett—the only mother on the Court and possibly the crucial fifth vote for overturning Roe—similarly sought to minimize the long-term costs of modern parenthood, claiming that “safe haven” laws allowing parents to surrender their newborns for adoption make it easier than ever to carry to term without long-term consequences.)
In addition to the most glaring problems with these arguments—their privileged perspective, their unjustifiably bullish characterization of women’s standing in the workforce today, and their wildly callous take on the physical and psychological tolls of pregnancy (and dropping a newborn at a fire station)—a reversal of Roe is also likely to place an outsized burden on workers and, by extension, their employers.
Like several other blockbuster disputes before the justices this year, this case complicates the current court’s reputation as the most business-friendly court in more than 100 years. A reversal of Roe will immediately change the lives of tens of millions of people in the workforce. If the court upholds the Mississippi ban and disavows Roe, at least 25 other states are likely to follow suit. And already, research suggests that workers—at least those with market power—will be hard to recruit or retain in states where abortion rights are severely curtailed. In one poll earlier this year, two-thirds of college-educated workers (that’s men and women) indicated they wouldn’t even apply for a job in such a state, and about half indicated they would consider moving away if lawmakers in their states passed highly restrictive abortion laws.
Among the questions we have for employers:
- How wide is the disconnect between what pregnant employees can expect in terms of support and what the likes of justice Barrett and the state of Mississippi suggest is the norm?
- Will forward-looking businesses provide supplemental prenatal support, including money and time off for employees to travel out of state to secure a legal abortion?
- How will businesses accommodate manual laborers who can no longer do demanding physical work while the state forces them to continue their unwanted pregnancy?
- Will businesses provide the psychological support necessary for women who are forced to carry to term? What about those who choose the safe-haven option and face years, possibly a lifetime, of trauma?
Why do we pose these questions to employers, rather than the government? Simply put, the Supreme Court, along with the business lobby that has pushed it rightward, has presided over the dismantling of public support infrastructure that would truly empower workers, including those who are pregnant or parenting.
To be clear, business interests have almost always fared exceedingly well before the Supreme Court. Under chief justice John Roberts, that’s certainly remained the case: The current court has sharply curtailed the rights of unions, consumers, and employees. It takes a dim view of government-imposed health and safety regulations, while striking down legislative efforts to curb corporate and corporate titans’ influence over elections.
This term appears to promise more of the same, despite the massive economic upheaval forced by Covid. The court has already invalidated the Biden administration’s eviction moratorium (itself a response to the economic dislocations wrought by the pandemic). Within the next few months, it seems poised to block states from restricting the right to carry guns in public spaces and may well strike down the federal safety directive requiring employers to mandate vaccines or regular testing and prevent the government from effectively regulating greenhouse gases.
All of these decisions can, and likely will, be framed as wins for the business community. The problem is that the more that government is sidelined, the more pressure it puts on other institutions to step up. While some among us can retreat into bubbles of relative security, most cannot. Businesses, of course, must continue to function in the real world. And that means they may be the only ones positioned to pick up the slack.
So businesses that want or face pressure to be environmentally sustainable must incur the risk that, absent government mandates, they’ll be bearing a disproportionate share of the costs of sustainability, and lose some competitiveness when it comes to pricing and profits for their trouble.
Businesses that do not want to be Covid hotspots—if only because that’s terrible for productivity, retention, and liability—will need to mandate testing and vaccines on their own.
Businesses that don’t want to be the site of the next mass shooting will need to do more extensive employee background checks, hire more security, and insist employees check firearms at the door.
And while the Supreme Court disables government regulation of businesses, gun ownership, and the like, it may well be empowering states to force people to extend unwanted or unsafe pregnancies to term. This control over (primarily) women’s bodies should tell you everything you need to know about the standing of those individuals in the workforce. For the nearly 50 years since Roe, that feels the true constant.
A reversal of Roe would represent a fundamental denial of personal autonomy and equal protection under the law. This is hardly fixed by the promises of psychological services and a roundtrip ticket to a clinic a state, or several states, away.
Setting aside blame for the companies that got us here with campaigns to disempower government, the question now will be whether they act. The business community should, however belatedly, stand with the overwhelming majority of Americans who support reproductive rights—and join them in opposing state restrictions. Where such campaigns fail, it should step up and provide the necessary support. More broadly, perhaps it should reassess its role as chief patron and regular beneficiary of a Supreme Court so willing to jeopardize the health and welfare of so many.