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| Meredith Kirshenbaum |
If Roe v. Wade is in fact overturned, the Guttmacher Institute has hypothesized that just over half of the country's states "are certain or likely to ban abortion."[1] Employers in those states have been left to grapple with the question of what to do, if anything, about that seeming inevitability.
While reproductive access might seem like an issue that does not concern employers, in the past several years, it has become increasingly common for employers to take public stances on sociopolitical issues that are important to their workforces. We have seen companies do so following George Floyd's death, the Jan. 6 insurrection and the enactment of what detractors call the "Don't Say Gay" legislation in Florida.
Many employers may choose to do so because their employees and consumers care about the social values of the companies that they work for or support — meaning that employees are actively looking to work for, and consumers are actively looking to support, a company that shares their social values.
From that lens, putting in place policies that signal to employees and consumers that a company is committed to a social issue — like preserving reproductive rights — can have recruitment, retention and market benefits. That is particularly true with respect to abortion, where 61% of Americans believe abortion should be legal in all or most cases, according to the Pew Research Center.[2]
Even more so than other social and political issues, restricted abortion access in many states has the potential to cause concrete retention and recruitment concerns for companies that operate in those states.
In the past several years, there has been a boom of companies expanding in or relocating to Sun Belt states. Texas alone is the new or soon-to-be home to Tesla, Oracle Corp., Hewlett Packard Enterprise Co. and Samsung Electronics Co. Ltd.
Companies that have made the decision to move are relying on access to top talent markets in the states where they've relocated. As it relates to reproductive access, the vast majority of states considered Sun Belt states are also those that are certain or likely to ban abortion.
Ultimately, such legislation may prevent certain talent pools from moving to or remaining in those states, for fear of the potential consequences for their reproductive access, or general misalignment with state politics.
In fact, a 2021 PerryUndem poll found that approximately two-third of college-educated workers would be less likely to take a job in Texas due to the state's abortion ban.[3] As a result, we are seeing companies essentially trying to assuage fears about reproductive access by implementing policies that offer support for employees who wish to seek access to abortions across state lines.
How are employers doing so? The policies vary. Many employers that have gone public with their policies have announced that they will cover out-of-state travel expenses — including airfare and hotel fees — for employees who cannot access reproductive care near their homes. Some employers, like Salesforce, are offering to help employees relocate permanently. And other employers are taking less direct action, creating relief funds that employees in need of abortion access can tap into.
All of these, which in some form or another make it more financially feasible for employees to obtain abortion access out of state, are options for employers looking to support employees.
Employers implementing abortion access policies are not doing so without risk. Already, several state laws restricting access to abortion make it illegal to aid and abet the violation of the state law — effectively meaning that someone who takes action that would help another individual obtain an illegal abortion could be held liable under the law.
For example, the Texas anti-abortion law, S.B. 8, imposes civil liability for aiding and abetting illegal abortions, including for reimbursing the costs of the abortion.
From a practical perspective, this means that a state like Texas is likely to take the position that a corporate policy that helps an employee get greater abortion access — either through travel reimbursement, access to telehealth or cost coverage — subjects that corporation to civil liability under state law.
Generally speaking, from a legal lens, the least risky policy is something like what Salesforce has implemented, which supports relocation broadly and proactively, without any ties to a specific act of abortion. Of course, a policy like that may not work for smaller companies that lack offices in other states or the ability to allow employees to permanently work remotely.
Notably, companies that have health insurance policies covering abortion-inducing oral medication are likely to be taking the greatest amount of risk, because those policies may result in an employee having an abortion in a state where it is illegal.
Somewhere in between those two options, and an option that is more practical for most employers than the Salesforce example, is reimbursing employees for costs associated with travel to another state, where abortion is legal, to obtain reproductive access.
However, it remains to be seen whether helping someone obtain an abortion in another state where it is legal could violate a different state law. We can almost assuredly expect to see Texas and other states litigate this issue, at the very least to make a statement against companies taking public social stances.
Beyond statutory violations, companies implementing reproductive access policies should be prepared for potential political backlash. In recent months, state leaders have shown their willingness to penalize companies that take public positions at odds with their legislative agendas, even when doing so is perfectly legal.
In April, Florida Gov. Ron DeSantis signed legislation punishing The Walt Disney Co. for its opposition to the "Don't Say Gay" law by eliminating certain of its real estate and tax privileges.
Similarly, in Texas, at least one state legislator has threatened to limit Citigroup's ability to underwrite municipal loans because of its policy with respect to abortion access, which provides travel benefits to employees seeking abortions outside of their state, if necessary.
And on May 4, Sen. Marco Rubio, R-Fla., proposed federal legislation, the No Tax Breaks for Radical Corporate Activism Act, that would prevent companies from writing off expenses in connection with travel for the purpose of accessing abortion or gender transition procedures.
The point of these actions are clear: Legislators do not want companies undermining their policies — or worse, standing in the way of their political agendas — even when doing so is legal. Legislators are trying to signal to corporate America that taking any act of corporate activism that is at odds with the political climate can come with cost.
To be certain, the large corporations that have already implemented abortion access policies are almost assuredly aware of the political risks of doing so. Nonetheless, it seems they have made a calculated decision that from their perspective, the retention, recruitment and market benefits outweigh those risks. Whether or not smaller companies align with that risk vs. reward analysis largely remains to be seen.
The final Supreme Court decision that is expected to overturn Roe v. Wade is anticipated to be published in the coming days. With that decision, we can expect to see more and more employers contemplating abortion access policies, and the fallout from those policies play out in courts and legislatures throughout the country.
Any company thinking about implementing policies that help employees access reproductive care should first consider the stance of its own employees, and its larger labor market, to assess how such a policy will be received, and whether — given the employee population — it is something that would be valued by employees to justify any legal or political risk that results.
Employers should also review their pertinent state statutes, assess risk under the state law for aiding and abetting abortion access, and consider the potential political backlash before doing so.
Lastly, employers should consider which sort of policy will best serve their overall objectives and is feasible to implement given capacity and resources.
Meredith S. Kirshenbaum is a principal at Goldberg Kohn Ltd.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
[1] https://www.guttmacher.org/article/2021/10/26-states-are-certain-or-likely-ban-abortion-without-roe-heres-which-ones-and-why.
[2] https://www.pewresearch.org/fact-tank/2022/06/13/about-six-in-ten-americans-say-abortion-should-be-legal-in-all-or-most-cases-2/.
[3] https://perryundem.com/wp-content/uploads/2021/09/PerryUndem-TX-Abortion-Law_Survey-Findings_0901.pdf.
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