The Dobbs Decision: Emerging Trends in Corporate Response
by Shea Holman and Hannah Naylor
Introduction
On June 22, the U.S. Supreme Court officially reversed Roe v. Wade, declaring that the constitutional right to abortion, upheld for nearly a half century, no longer exists. The court’s decision not only threatens the physical and mental wellbeing of people who are or may become pregnant, it threatens to reverse momentous gains and raises new barriers to women’s full participation in the workforce. According to the Institute for Women’s Policy Research (IWPR), it is estimated that state-level restrictions have cost those economies $105 billion a year in reduced labor force participation, reduced earnings, increased turnover, and time off among prime working-age women.1
As states continue to introduce, and in many instances pass, anti-abortion laws, corporate America has experienced a rallying cry from employees, calling on their companies to step up and take action to support them across all aspects of bearing and raising children. Amid a competitive talent marketplace, employers have a responsibility to solve for the issues facing their workforce. If they don’t, they stand to lose their competitive edge for attracting and retaining top talent. Below are some emerging trends companies have taken in response to Dobbs, potential obstacles companies should be aware of when taking action, and why employers, now more than ever, need to act to ensure they’ve created an inclusive environment where employees feel fully supported.
Emerging Trends in Corporate Response
In response to the U.S. Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization, which expressly overturned both Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey, numerous large corporations have publicly stated their plans to help employees access reproductive health care. Responses have varied, with some companies staying quiet and others offering to provide benefits, such as covering part-time employees and independent contractors who would not otherwise receive employee health care benefits; reimbursing child care costs associated with travel for obtaining an abortion; and offering to relocate employees if they or their family members are impacted by laws restricting their access to reproductive health care.
A number of companies have taken action to support workers’ reproductive access and rights. Here are a few emerging trends:
Covering Abortion-Related Expenses through Employer Health Plans
Companies like Credit Karma, Yelp, Patagonia, Airbnb2 and Match Group3 have committed to covering abortion-related expenses through their health plans so employees don’t have to inform the company directly about claims for reimbursement. This initiative helps to eliminate some of the issues that arise with policies that reimburse employees for travel, rather than cover the travel upfront. Reimbursement may be a challenge for low-wage workers, as they have to come up with the money for the travel at the onset and wait for the company to pay them back, which could take weeks or even months. According to Alina Salganicoff, Director of Women’s Health Policy at the Kaiser Family Foundation, “A reimbursement mechanism is only going to work for people who can come up with that money.”4 A second issue with reimbursement plans is that an employee’s privacy may be compromised. If an employee travels to another state to obtain an abortion and then seeks reimbursement from the company, they will be required to discuss a personal medical decision with HR or another division at the company. Thus, proactively structuring health plans ensures that any care and support services sought out by an employee are never shared with the company.
Including Part-Time Staff in Coverage
Full-time employees are not the only individuals who may incur expenses related to travel for abortion services. Companies such as Levi Strauss5 and Patagonia6 have pledged to cover abortion-related travel expenses for part-time staff and others who are not included in the company’s benefits plan. Specifically, Patagonia covers the cost of medical insurance for all part-time and full-time employees and offers the same health plans to all employees.7 According to Levi Strauss, “Protection of reproductive rights is a critical business issue impacting our workforce, our economy and progress toward gender and racial equity. Given what is at stake, business leaders need to make their voices heard.”8
Expanding Travel Benefits
In addition to changing policies to cover travel costs for any employee or dependent seeking specialized health care, some companies are offering to reimburse employees for any child care costs incurred from abortion-related travel. Chobani9 and Amalgamated Bank10 are among some of the companies that have made this pledge. The yogurt company updated its health care policy for employees in May, following the leak of the draft Dobbs opinion, to cover transportation and lodging expenses for any employee or dependent (as well as one caregiver) who needs to travel to receive specialized health care, including abortions. The policy also includes reimbursement for child care costs incurred from the travel. Impossible Foods said it would cover travel, lodging, meals and child care for employees who need to travel to get abortions out of state. According to Peter McGuinness, the chief executive, “Supporting our colleagues in their reproductive health is absolutely the right thing to do.”11 Other companies like Adidas and Amazon will pay up to $10,000 and $4,000 respectively in travel and lodging expenses for employees who must travel out of state for an abortion.12
Obstacles and Legal Risks for Companies
The ability of companies to offer the types of benefits discussed above depends in large part on the size of the company. Larger companies can afford to provide such coverage because they are self-insured, meaning they pay their workers’ claims and hire a third-party administrator, typically an insurer, to manage the health plan. These self-insured plans are subject to federal regulation, which does not limit abortion care. On the other hand, smaller and mid-size companies “are subject to state oversight and would have a harder time providing abortion benefits or travel reimbursement in states where the procedure is banned.”13 Further, insurance companies may limit coverage for abortion-related services for employees in states that prohibit abortions, even if the employee is willing to travel to a different state where such services are permitted.14
In some states, legislators have begun targeting firms or companies providing employee abortion access or reimbursement. In Texas and Oklahoma, Republican lawmakers sent a letter to Lyft Chief Executive, Logan Green, saying they will “take swift and decisive action” if the ride-hailing company implements its policy of paying the travel costs of women who leave Texas or Oklahoma to obtain an abortion.15 The action includes introducing legislation barring corporations from doing business in the state of Texas if they pay for elective abortions, as well as legislation that imposes criminal liability on any director or officer of a publicly traded corporation that uses corporate resources to pay for elective abortions or reimburse abortion-related expenses.16 Companies that are heavily regulated by the state and rely on state licenses and funding to operate may also face ramifications from state legislators on this issue. Companies in the oil and gas industry, utility providers, and cable companies may become subject to legislation restricting them from obtaining and utilizing a license if they provide abortion travel benefits.17
From a legal standpoint, there is a concern that legislators or prosecutors in red states will impose corporate criminal liability. Although it is still unclear whether prosecutors will bring action against companies with policies covering employees’ abortion-related travel expenses, “[s]ome reports have raised the propsect of a state asserting ‘aiding and abetting’ criminal laws to punish employers that pay the travel costs of workers crossing state lines to access an abortion procedure.”18 While the Employee Retirement Income Security Act of 1974 (ERISA) prohibits states from adopting requirements that “relate to” employer-sponsored health plans and would be a viable defense for corporations facing civil liability over their travel reimbursement policies, ERISA cannot prevent states from enforcing criminal laws, such as those making it a crime to aid and abet abortion.19 Thus, companies may face criminal liability in certain states for providing abortion-related coverage, regardless of ERISA.
Why Companies Should Act
Despite concerns over legal risks and legislative barriers imposed, this decision will impact the lives of millions, and that impact will lead to a widening of inequities for employees, including the gender pay gap, performance ratings and advancement, and diversity, equity and inclusion in our workplaces. In a country like the United States where companies operate in an employer-sponsored health care system, health care is inextricably linked to an individual’s employment. Thus, pregnant peoples’ ability to obtain reproductive health care is a workplace issue that employers cannot ignore. With the overturning of Roe, Americans are increasingly looking to their employers to guarantee their right to obtain an abortion. Data shows that “employers have a responsibility to solve for the issues facing their workforce,” including reproductive health access, “and will suffer recruitment and retention consequences if they don’t.”20 In fact, a 2021 survey by non-partisan research firm Perry Undem showed that 73% of the 1,804 respondents wanted their employers’ health insurance to include abortion, and 69% believed that reproductive health care should be part of companies’ efforts to address gender equity.”21
While it is promising to see the quick corporate response to the Supreme Court’s decision, oftentimes employers overlook the most vulnerable populations of their workforce, designing policies and action steps that leave out the very employees who need these initiatives the most. While some companies have explicitly announced that part-time workers and those not included in the company’s benefits plan are eligible for reimbursement, (think “Levi Strauss” discussed above), most companies have excluded vast sections of their workforce that are not part of the company’s medical plans. For example, although providing workers with travel, childcare, and health benefits is a step in the right direction, these initiatives often exclude part-time workers with less than 20 hours on the schedule, workers on Flex schedules, and Medicaid recipients.22 These are the individuals likely to be the lowest-paid in the company and least likely to be able to cover these types of expenses should they arise.
To solve for this, businesses should provide all workers with paid family and medical leave, reasonable pregnancy accommodations, flexible and predictable schedules, and a living wage, which are all essential for low-wage workers who do not benefit from new or existing policies.23 Additionally, according to Shaina Goodman, director for reproductive health and rights at the National Partnership for Women & Families, companies should “take a close look at their political contributions, and consider long-term investments in abortion funds and reproductive justice organizations.”24 Following the abortion ban in Texas, both Bumble and Match created relief funds, channeling money toward organizations that offer support for people seeking abortions, particularly those serving the most vulnerable populations.25
Join us to Continue the Discussion
This is a critical moment for women throughout the United States — and many of us have personal stories to tell about how current events, like the #MeToo Movement or the Supreme Court’s recent overturning of Roe v. Wade, are impacting us. The landscape of the American workforce has shifted. And while fact-based advocacy is effective at driving change, it has been found that personal stories from real people have a much greater impact. Through narrative, individuals and communities can learn how to have a voice in the uncertain world we live in.
Join us Wednesday, August 10th at 12 pm ET, for a storytelling workshop led by Roula AbiSamra, trainer, facilitator, and organizer in the reproductive justice movement. In this critical moment where many women in the workplace are wondering if or how to share their stories, Roula will teach attendees how to craft their own personal stories and will guide participants through important considerations such as deciding what to share, dealing with triggers, and creating a self-care plan. Participants will also have the opportunity to break out into pairs to practice sharing their stories in a safe space. Sign up for the event here.
Shea Holman serves as the Purple Campaign’s Executive Director. In her role, Shea oversees our advocacy efforts to make workplace harassment a priority on the legislative agenda, in the corporate sector and in the courts. She previously served as the Purple Campaign’s Director of Law & Policy, advocating for stronger corporate policies and better laws regarding workplace sexual harassment. Shea received her law degree from the University of Minnesota Law School where she earned Concentration Honors in Labor and Employment Law and was the President of the Women’s Law Student Association. Her prior work experience includes the Equal Employment Opportunity Commission and the Minnesota Conflict Resolution Center. Shea also has experience representing employees in both the private and government sectors and worked as a Training Consultant for HR Consulting firm Bright Compass and the Purple Method.
Hannah Naylor is a legal intern with the Purple Campaign’s Law & Policy team. As an intern, she assists the Purple Campaign’s advocacy efforts on the hill and in the courts by conducting legal research on issues in employment, constitutional and civil rights law. Hannah is a rising second-year law student at UC Berkeley School of Law where she co-leads the Survivor Advocacy Project, a student-led pro bono project that partners with rape crisis and women’s rights organizations to increase the rights and protections of incarcerated survivors of sexual violence. Prior to law school, Hannah was a regional coordinator for the Native Hawaiian non-profit organization Ho’ola Na Pua, working to prevent child sexual exploitation.
SOURCES
1. “The Costs of Reproductive Health Restrictions: An Economic Case for Ending Harmful State Policies,” Institute for Women’s Policy Research (May 2021), https://iwpr.org/wp-content/uploads/2021/05/Costs-of-Reproductive.
2. Pavithra Mohan, “What happens to privacy when employers pay for abortions? It’s complicated,” (July 6, 2022) https://www.fastcompany.com/90765856/what-happens-to-privacy-when-employers-pay-for-abortions-its complicated.
3. Tami Luhby, “If you use your company’s abortion travel benefits, will your boss find out?” (July 6, 2022) https://www.cnn.com/2022/07/06/success/companies-abortion-travel-policy/index.html. 18 Retail Dive Staff, How retailers are responding to the Roe v. Wade ruling (June 27, 2022).
4. Id.
5. Clare Duffy & Jennifer Korn, “These US companies will cover travel costs for employees who need an abortion,” (June 2022) https://www.cnn.com/2022/06/24/tech/companies-abortion-reaction.
6. “Patagonia Supports Choice,” LinkedIn (June 2022) https://www.linkedin.com/pulse/patagonia-supports.
7. Id.
8. Duffy, supra note 5.
9. Id.
10. “Amalgamated Bank Funds Full Reproductive Health Care Access For Employees and Communities,” (May 3, 2022) https://www.amalgamatedbank.com/news/amalgamated-bank-funds-full-reproductive-health.
11. E. Goldberg, “These Companies Will Cover Travel Expenses for Employee Abortions,” The New York Times (June 2022) https://www.nytimes.com/article/abortion-companies-travel-expenses.html.
12. K. Gibson, “These Companies are Paying for Abortion Travel,” CBS News (July 2022).
13. Luhby, supra note 17.
14. Lisa Kohring & Weston Mumme, “Employment Implications Arising from Dobbs v. Jackson Women’s Health Organization,” (June 29, 2022) https://www.hklaw.com/en/insights/publications/2022/06/.
15. Catherine Barbieri & Pamela Thein, “The Supreme Court’s Dobbs Ruling Creates a Variety of Significant Legal Issues,” (July 1, 2022) https://www.foxrothschild.com/publications/the-supreme-courts-dobbs-ruling.
16. Id.
17. Amanda Ottaway & Kellie Mejdrich, “What Employers Should Do Now That Roe Has Fallen,” (June 2022) https://www.law360.com/articles/1505902/what-employers-should-do-now-that-roe-has-fallen (quoting DLA Piper partner Erin M. Sweeney).
18. Andrew Graw, et al., “Employer-Paid Travel Assistance for Interstate Abortion Access,” (June 2022) https://www.lowenstein.com/news-insights/publications/client-alerts/employer-paid-travel-assistance-for-interstate-abortion-access-eben-employment.
19. Daniel Weissner, “Legal clashes await U.S. companies covering workers’ abortion costs,” (June 2022) https://www.reuters.com/world/us/legal-clashes-await-us-companies-covering-workers-abortion.
20. Andrea Hagelgans & Soni Basi, “Roe v. Wade’s Demise Is a Turning Point for Corporate America,” (June 2022) https://hbr.org/2022/06/roe-v-wades-demise-is-a-turning-point-for-corporate-america.
21. Perry Undem, “How ‘Top Talent’ Views Politics and Social Issues in Their Workplace, Findings from a National Survey” (Oct. 2021) https://perryundem.com/wp-content/uploads/2022/03/PerryUndem-Tara-Health.
22. L. Kaori Gurley, “Amazon’s Abortion Travel Benefit Doesn’t Include its Most Vulnerable Workers,” Vice (May 2022) https://www.vice.com/en/article/7kbnpd/amazons-abortion-travel-benefit-doesnt-include-its-most-vulnerable-workers.
23. L. Hoffman & R. Khattar, “Opinion: 3 things businesses should do to support their workers’ reproductive choices beyond paying for employees’ abortion-related travel expenses,” MarketWatch (July 2022) https://www.marketwatch.com.
24. S. Todd, “Everything that’s wrong with relying on employers for abortion access,” Quartz (June 2022) https://qz.com/2183079/roe-v-wade-what-happens-when-employers-provide-abortion-access.
25. Id.