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Focus on the Supreme Court Overturning Roe v. Wade
The Supreme Court’s ruling Friday eliminating the constitutional right to an abortion puts unprecedented pressure on businesses to lead in reproductive rights, similar to how they’ve had to step up on mental health, caregiving, and racial justice in earnest over the past few years.
It’s an understatement to say that few business leaders have sought out this role. But reproductive rights, in addition to being essential legal protections, are undeniably a workplace issue that they shouldn’t ignore. Access to abortion is access to healthcare, and essential to the physical, emotional, and financial well-being and safety of women and pregnant people. A majority of Americans supports a legal right to an abortion, and polling suggests that about two-thirds of college-educated workers wouldn’t take a job in a state with an abortion ban. In what is still a tight job market, studies have shown clearly that retention and engagement suffer when employers don’t speak out publicly on issues workers believe are important.
Human-resources leaders are now scrambling to put together policies to support their employees. (More details below.) Friday’s ruling on Dobbs v. Jackson Women’s Health Organization will weigh most heavily on those who have already suffered the most in the pandemic—women, people of color, parents already facing soaring child-care costs and inadequate child-care leave policies, trans and nonbinary people who struggle to access reproductive care.
Companies that support their workers’ abortion rights risk being attacked by Republican politicians. Once a staunch supporter of big business, the GOP is now targeting companies that speak out on societal issues. Florida governor and possible presidential candidate Ron DeSantis took on Disney; former vice president and possible presidential candidate Mike Pence decried “woke capitalism.” Sen. Marco Rubio has already proposed the “No Tax Breaks for Radical Corporate Activism Act,” which bars employers from writing off the costs to pay for abortion-related travel or gender-affirming care for their children.
In light of Friday’s ruling, we talked to experts who have studied corporate action on societal issues. Here are their reactions, edited for space and for clarity:
Most companies won’t make a statement.
Paul A. Argenti, professor of corporate communication at Dartmouth’s Tuck School of Business
Abortion rights are different than some of the other issues you can talk about, like LGBTQ [rights] or Black Lives Matter, in that a good solid 40% of people completely disagree that abortion rights should be legal. In a world like that, if you’re willing to take the heat, go for it. Most companies are not when push comes to shove….If you’re not willing to fight the good fight with those 40%, you’re in for a really rough ride.
Reproductive healthcare is a basic human right. It is not taking a stand.
Alison Taylor, executive director of NYU Stern’s Ethical Systems, writing a book on how business can do the right thing in a turbulent world
I would argue that reproductive healthcare is a basic human right, and also key to many companies being able to attract and retain employees. I would also argue that pluralistic, liberal values make sense for almost all Western corporations, which means respect for everyone's values and beliefs, even if they are different from yours. That would mean that anti-abortion employees would not be able to impose their views on pro-choice employees. Pro-choice employees are not seeking to impose their views on their colleagues—if you don’t want reproductive healthcare, don't use it.
It is perfectly fine to provide reproductive healthcare or any other benefit without also ‘taking a stand.’ I would limit the use of corporate speaking up and CEO activism to a tiny number of business-relevant issues. Employees should be allowed, within reason (no egregious racism, etc.) to express their personal views and use their personal time and salary to support whatever causes or politicians they like.
Shift the conversation from politics to how the organization is caring for its employees.
Erika Seth Davies, CEO of Rhia Ventures, a social-impact investment firm focused on reproductive health
Reframe the conversation as an affirmation of support for the workforce. Reposition this as healthcare and just reiterate that over and over again, as a company that ensures access to healthcare for employees.
The most tactical thing companies can do right now is [ask], ‘How do we take care of our workforce?’ That includes making sure that they’re ensuring coverage and abortion access for any reason, making sure they have policies in place if they have operations or employees in states where it’s about to be severely limited, providing travel vouchers or subsidizing travel. They definitely need to make sure employees who would like to relocate are able to do so, and that if they have employees that need abortion care, that they’re supported with adequate paid time off. This is part of a spectrum of reproductive healthcare: Do they have contraception coverage beyond Affordable Care Act requirements? Comprehensively, what does it look like for your company to support women and birthing people?
Because so much of coverage in this country comes from employers, corporate responsibility is now the backstop in terms of access to abortion care. It’s not a comfortable position for companies or women to be in, but this is where we are… The idea that being attacked or people saying mean things [about your company] is worse than not being able to access healthcare is not an effective case.
The world has changed overnight. If you haven’t heard from your employees on this issue before, you will now.
Nancy Northup, president, Center for Reproductive Rights
Whatever someone was doing yesterday, today is a new day. The landscape of what employers are going to hear from their employees in those states, what they will hear from other people who support their brands, has changed. [Customers and employees] are going to expect them to take a stand on one of the most horrific reversals of a right we’ve seen in this country. So I think it’s going to be a new day. Companies have just begun thinking about this issue. I expect a lot of change and development.
What Else You Need to Know
Lack of abortion access is colliding with lack of protections for working parents. Of the 26 states that either already have or are likely to make abortion illegal in the near future, none currently mandates any form of paid leave.
- That includes 13 states with so-called “trigger laws,” which either immediately made the procedure illegal or set the wheels in motion to do so in the coming weeks, and states with pre-Roe bans on the books or more recent laws limiting access, as well as states that have signaled they would likely move to ban abortion if Roe fell.
- Fewer than half of those states currently provide any legal protections for pregnant workers.
- A Washington Post analysis also found that states outlawing abortion tended to have lower median salaries for women and less affordable child care.
- Researchers estimate that over the next year, roughly 75,000 people will give birth after unsuccessfully seeking out an abortion. Women who are denied abortions are less likely to be employed and more likely to be in poverty within six months than women with access to abortion services
- While women’s labor-force participation is now approaching pre-pandemic levels, more than a million women left the workforce between the onset of the pandemic and the beginning of this year, in large part pulled away by the need for child care. Eighty-six percent of women say controlling if and when to have children has been important to their careers.
- Nationwide, one-third of private-sector workers have no access to paid sick leave, according to the National Partnership for Women and Families, adding an additional layer of difficulty for those who need to travel to, and recover from, abortions.
- More than 50% of people seeking abortions already have children, and one 2018 study found that those children fare worse when their parents are denied abortion care, with higher rates of housing insecurity and hunger.
- The Institute for Women’s Policy Research estimates that state reproductive-health restrictions cost $105 billion each year in reduced workforce participation and earnings, and increase turnover and time off from work among women ages 15 to 44.
Employers are struggling to navigate benefits in post-Roe America. As some states implement and enforce laws that restrict access to abortions for individuals and potentially leave those who assist them vulnerable to legal action, many employers are studying up on the legal implications of rolling out new benefits and policies.
- Over 30% of companies offer paid time off for access to reproductive care, with nearly a third planning to increase support for reproductive care.
- A 2019 survey from the Kaiser Family Foundation found that 3% of companies offering health coverage explicitly exclude abortion, accounting for 10% of workers. That figure does not account for health plans administered in the 11 states that bar abortion coverage in all private insurance plans.
- Employers are working with benefits providers to understand the impact of federal and state law on the coverage of their group health plans. Privacy is one concern, as employees using an FSA to pay for an abortion would need to submit documentation of the expense. Mental-health parity is another, as the Mental Health Parity and Addiction Equity Act of 2008 requires that applicable plans cover mental-health services as fully as physical health care, meaning that reimbursement policies specific to reproductive care may be in violation. Playbooks like this one from Pro Repro can offer guidance on how to develop and implement benefits.
- Some companies have rolled out or are considering reimbursements for abortion-related travel expenses. In states where abortion remains legal, employees can also seek reimbursement through their HSA, HRA, or FSA accounts. But for employees traveling from a state where abortion is illegal—and especially from a state whose laws restrict “aiding and abetting” an abortion—questions of how to cover expenses and reimburse workers are much more complex.
- There are other legal implications that employment law firms and in-house legal and HR teams are working through, including how to apply leave policies and whether certain provisions of the Pregnancy Discrimination Act protect those seeking an abortion.
- Planned Parenthood CEO Alexis McGill Johnson, who has been advising CEOs since a draft of the majority opinion leaked last month, is urging companies to focus their influence and donations locally, explaining in a Fortune interview: “What are they doing to influence their chambers of commerce? This is very much a local issue. Where does the value of a company stand nationally, but also locally in state?”
The Supreme Court’s ruling set the stage for a broader rollback of reproductive and LGBTQ rights, leaving companies to figure out how to best protect their workers. In a concurring opinion, justice Clarence Thomas argued that the court should “correct the error” in three previous cases that hinged on the same constitutional interpretation as Roe to legalize birth-control access for married couples (Griswold v. Connecticut), same-sex sexual relationships (Lawrence v. Texas), and marriage equality (Obergefell v. Hodges).
- Anti-abortion laws will also likely make it more difficult for both heretosexual and same-sex couples to access IVF and other assisted reproductive technologies, particularly in states that legally define life as beginning at fertilization.
- Nearly half of LGBTQ employees have faced harassment or discrimination at work. While the Supreme Court ruled in 2020 that LGBTQ workers are protected from employment discrimination under the Civil Rights Act, overturning Obergefell would endanger same-sex couples’ access to employer-sponsored health coverage and retirement plans, as well as adoption and fertility benefits, and would leave room for employers to redefine who would qualify as a dependent for employees seeking parental or caregiving leave.
- This week’s news comes at a moment when lawmakers have seemingly redoubled efforts to strip away LGBTQ rights at the state and federal levels, with legislation such as Florida's "Don't Say Gay" law and Sen. Rubio's "No Tax Breaks for Radical Corporate Activism Act.”
Corporate action speed round:
- Prior to the decision, some companies had already announced that they would cover travel expenses for employees who have to travel for an abortion, including Starbucks, Tesla, Yelp, Airbnb, Netflix, Patagonia, DoorDash, JPMorgan Chase, Levi Strauss & Co., Mastercard, Microsoft, and Reddit. On Friday, another round of companies announced similar benefits in public statements or internal memos, including Walt Disney Co., Paramount, Sony, Comcast, Dick’s Sporting Goods, Condé Nast, Nike, Pinterest, Macy’s, Goldman Sachs, Ebay, Bank of America, Atlassian, Warner Brothers, Buzzfeed, Zillow, and Starbucks.
- Last fall, dating app companies Match Group and Bumble created funds to directly support those affected by state abortion bans.
- Yelp, Lyft, Bumble, and Benefit Cosmetics have announced donations to organizations that support abortion rights.
- Salesforce, Ritual, and Bospar are among the companies that will cover relocation costs for employees who live in places where they can’t access the procedure. Google implemented a new policy allowing workers to apply for relocation “without justification.”
- Lyft and Uber plan to cover legal fees for drivers who transport individuals seeking care in response to state laws that allow private citizens to sue individuals that assist others in accessing abortions.
- Patagonia pledges to cover bail for employees arrested in abortion protests.
- OkCupid sent an in-app notification to all users located in the 26 states likely to ban abortion that encouraged users to take action by calling their representatives.
- Meta warned employees on Friday to follow its “Respectful Communications Policy,” which bans discussions about abortion in official workplace channels. In a memo outlining the policy last month, the company wrote that “discussing abortion openly at work has a heightened risk of creating a hostile work environment,” though it does allow discussion of personal experience in 1:1 meetings and other private settings.
Here are some of the best tips and insights for navigating what comes next:
- Use a task-triage system to get through distressing times. When current events make it hard to focus on work, have a prioritization session with each of your team members to figure out what can be taken away or pushed back to ease their load.
- Self-audit your insurance coverage. Take a deep dive into your company’s healthcare benefits to ensure they cover both elective abortions and medically necessary abortions in states where it remains legal. Because abortion access is not an “essential health benefit” under the Affordable Care Act, employers have had discretion on whether to cover it and may be missing the benefit without realizing it.
- Proactively communicate your policy. With restrictive laws having the biggest impact on low-wage workers, and 41% percent of women of childbearing years losing access to their nearest abortion clinic, consider offering paid time off and fully covering or supplementing the cost of travel out of state for abortion care. Start-up Pyn opensourced its abortion access policy if you’re looking for a template. Ideally, communications should come from the CEO or other senior leadership to convey an understanding of the gravity of the situation.
- Use inclusive language. Framing abortion and reproductive rights as a women’s issue excludes transgender and non-binary people who may need abortion care too. Instead of saying “abortion is a woman’s choice,” say “abortion is a human right” or “we support a pregnant person in however they choose to manage their pregnancy.”
The handbook for this new era of business doesn’t exist. We’re all drafting our own as we go along—and now we’d like to start doing so together. You can sign up here to receive this briefing by email.