Access to comprehensive reproductive health care is central to gender equity and women’s full participation in the workplace. For businesses, restrictions on access to reproductive health care, including abortion, are not only at odds with stated corporate values, such as equity and inclusion, they also affect the ability of companies to deliver on their value propositions.
The media coverage and subsequent corporate response to S.B. 8 in Texas demonstrated a new narrative that access to reproductive health care, including abortion, is a workforce and economic issue that companies need to acknowledge and address. The WSJ exclusive on Don’t Ban Equality in Texas including 60+ signers underscores this. A survey was shared with all of the signers; the overwhelming response from brands, workers, consumers and investors was uniformly positive with no notable blowback. Many other companies spoke out and/or acknowledged the impact of S.B. 8 including: Salesforce, Lyft, Uber, Bumble, HP, MotoRefi, Apple, Yelp, Reddit and Match.
More than 90 articles in the business-facing media have discussed the impact of and response to S.B. 8 and laws like it on the private sector. Recently Fortune covered how companies are having to rethink state operations and talent impact in the months ahead. And companies whose political giving has enabled reproductive health restrictions to promulgate unchecked are also seeing a new level of scrutiny from stakeholders including consumers and investors.
Why does the Dobbs v. Jackson Women’s Health Organization case at the U.S. Supreme Court matter?
Dobbs v. Jackson Women’s Health Organization will be among the highest-profile arguments of the 2021-22 term because the state of Mississippi had specifically asked the court to overrule its landmark decisions in Roe v. Wade and Planned Parenthood v. Casey in upholding a 15 week ban. The Dobbs case, in concert with the Texas cases challenging the state’s ban on abortion after six weeks (S.B. 8) heard on November 1, will be the first time the Court will rule on the constitutionality of a pre-viability ban since Roe.
If the court strikes Roe down, 24 states have laws on the books that could outright ban or severely limit access to abortion for tens of millions of women, and only 14 states have passed laws that would explicitly protect the right to abortion. Among the many amici briefs submitted in the case was a landmark brief filed by over 150 economists and more than 500 athletes. The economic losses from existing abortion restrictions, including labor force impact and earnings, already cost state economies across the nation an estimated $105 billion annually. The full methodology is here.
A recent study confirms that for women who were denied an abortion, there was “an increase in poverty; a decrease in employment that lasts for years; a scaling back of aspirational plans; and years spent trying to raise a child without enough money to pay for food, housing, and transportation instead of pursuing other life goals.”
How is S.B. 8 in Texas different from other abortion restrictions?
This law includes two key provisions: it bans abortion after approximately six weeks of pregnancy and allows almost anyone to sue abortion providers and others who support a person obtaining abortion care. S.B. 8 would prevent the majority of pregnant people in Texas from obtaining abortion care. Many people do not realize they are pregnant at six weeks of pregnancy and, if they do, other barriers to abortion and life circumstances can prevent them from accessing the care they need before this law bans abortion.
S.B. 8 is different from other state laws that attempt to ban abortion because it permits anyone to sue a person who provides or supports someone in accessing an abortion after approximately 6 weeks of pregnancy. Instead of the state enforcing the law, this unprecedented provision bars the state from enforcing the law and instead gives private citizens the right to sue, regardless of whether they have any connection to the patient or even live in Texas — including an abusive partner, estranged relative, or complete stranger. The law’s language is so broad that anyone who offers information or referrals for abortion care, drives the patient to a facility, helps them pay for their abortion—or intends to do so—could face a lawsuit. If their lawsuit is successful, the person being sued would be forced to pay at least $10,000 and be required to pay the plaintiff’s court costs.
It commissions a group of anti-abortion bounty hunters. It is designed to isolate patients. The deliberate cruelty is the point of the legislation. There was a website (since deplatformed) set up to collect anonymous tips from ‘whistleblowers’ illuminating the danger and stigma associated with this legislation. Also, it opens up countless questions for employers from an HR and Legal perspective that threaten workplace safety, norms, and culture.
In July, a group of health centers, doctors, and advocates, represented by the Center for Reproductive Rights, Planned Parenthood Federation of America, the American Civil Liberties Union, the ACLU of Texas, the Lawyering Project, Morrison & Foerster LLP, and Austin attorney Christen Mason Hebert, brought suit to challenge the law in an attempt to block the law before its September 1 effective date. In a matter of weeks, the case went all the way up to the Supreme Court. While not ruling on the merits of the plaintiffs claims, the Supreme Court refused to block the law immediately. While the Supreme Court ultimately heard arguments on November 1, in the meantime, Texans are denied fundamental constitutional rights.
S.B. 8 is the first time since 1973 that the federal courts have allowed a law banning abortion at a point in pregnancy before viability to take effect, and at present, most abortions are banned for the 7 million people of reproductive age in Texas. Legal analysts have described the law and subsequent action by the U.S. Supreme Court as the effective end of Roe v. Wade in Texas. More than a dozen states —including Florida and Ohio— are contemplating similar legislation, ensuring that abortion will continue to be a prominent media discussion.
Why should a company consider speaking out on reproductive health and access to abortion?
Increasingly, companies are developing an understanding that the workforce values abortion access and sees the issue as part of gender equity in the workplace. Companies that provide strong support for the constellation of needs facing workers that can become pregnant (including contraception + abortion coverage, maternal health care, parental leave, and more) are better positioned to attract and retain employees, build a strong pipeline of talent, and deliver on diversity and inclusion goals. These strengths can contribute to stronger bottom-line performance while helping companies prepare for increased scrutiny from stakeholders.
Notably, women of color as well as people in the South and Midwest are already disproportionately harmed by compounded economic and logistical barriers to accessing abortion care. And as access to abortion is diminished in states like Texas and elsewhere, it also has a direct impact on the availability of LGBTQ inclusive healthcare. The LGBTQ community is speaking out against bills like S.B. 8 as they are statistically more likely to seek out reproductive health services. And this law has traumatic consequences for trans and nonbinary people who are forced to carry out a pregnancy. Also as landmark court cases, such as marriage equality, rely heavily on the right to access contraception and reproductive health for precedent, diminished protections to reproductive health access are a harbinger of future restrictions on other issues companies care about.
This issue is perceived as divisive, why should companies engage on abortion?
Recent polling underscores support for reproductive health, including abortion, as well as opposition to S.B. 8 and copycat efforts.
- A recent Post-ABC poll finds broad agreement that women and their doctors should make decisions about abortion rather than being regulated by law. Overall, 75 percent say such decisions should be left to the woman and her doctor, including 95 percent of Democrats, 81 percent of independents and 53 percent of Republicans.
- 67% of the general public agrees with Roe. Quinnipiac notes that is “one of the highest levels of support” for abortion since the pollster began asking the question in 2004.
- A recent survey by Monmouth University also found that broad majorities of Americans oppose key components of the Texas law, with 7 in 10 saying they disapprove of a mechanism that empowers private citizens to enforce the abortion ban through civil lawsuits. An even larger number, roughly 8 in 10, expressed disapproval that the law provides $10,000 when those lawsuits succeed against someone who performs an abortion or aids someone receiving one in violation of the ban.
- White evangelical Christians are against S.B. 8 (57%) and 52% of Trump supporters.
Top talent wants reproductive health care, including abortion access, included in corporate gender equity efforts.
Roughly 7 in 10 respondents (69%) say access to reproductive health care, including abortion, should be part of the issues companies address when it comes to gender issues in the workplace. Two-thirds of respondents (66%) say S.B. 8 would discourage them from taking a job in Texas. Majorities across segments say this law would discourage them from working in Texas: • Women (74%) • Men (58%) • Gen Z (73%) • Millennials (69%)
The majority of consumers say Reproductive Health Care is extremely/very important
77% of consumers consider reproductive health care (i.e., access to contraception and abortion) an important issue; 91% of Gen Z and 86% of Millennials say it is important. 7 in 10 consumers believe it is important for brands to take a stand on issues. And of those who do, 86% want brands to take a stand on RH. This puts RH in line with the desire for action on other social issues, such as gender equity (92%), racial justice (94%), and voting rights (92%).
More than half of Gen Z (56%) and Millennials (55%) would be more likely to buy from a brand that publicly supported RH. It’s also the case that 41% of all consumers would choose the brand that publicly supported RH over a cheaper alternative and 38% would choose the brand over their very favorite brand. Importantly, this positive reaction overwhelms the potential negative: only 8% would be less likely to buy from a brand taking this type of stance. Even among Conservatives, the “less likely” share is only 14%.
How can companies/employers respond leading up to and upon a Supreme Court decision?
- Companies can state that their workplace affirms and supports workers who need access to comprehensive reproductive healthcare services including abortion. Join other businesses and private sector leaders by signing the Don’t Ban Equality statement.
- Companies can speak to the court of public opinion by placing articles and making statements that define abortion access as an economic and workforce issue; draw the connections between reproductive health and corporate equity commitments; and highlight how states are dictating policy in a way that negatively impacts employers and sets dangerous precedents that contribute to coercive work environments, opens up needless regulation and is an administrative burden.
- Prepare for workforce impact in Mississippi and states poised to ban abortion by conducting a self-audit to identify and redress obstacles faced by employees who need to obtain an abortion and other reproductive health care, including plan limitations, limitations in services offered by network providers, and the distance of providers who offer comprehensive care. Companies should subsidize travel costs for employees who need to go out of state to receive abortion care.
- Speak on record with the business press about the impact of a Supreme Court decision.
- Companies should discontinue political giving to elected officials at all levels working to undermine access to reproductive healthcare, as well as political committees, and review criteria used in making these allocations in the 2022 cycle.
- Employee Resource Groups can ask their employers to speak out publicly on the impact to current workers, prospective employees, and the communities of which they are a part. ERGs should emphasize the alignment between supporting reproductive health and upholding gender and racial equity commitments.
- Donate to direct service organizations at the national and state level which help people get the urgent, timely care they need by addressing barriers to care.
How can companies/employers respond when state-level restrictions are proposed?
- Companies can engage state legislators privately to oppose these bills before they become law given the workforce and economic impact. Business outcry at this juncture can help dissuade state legislatures from prioritizing copycat bills. Data on economic costs to states of existing restrictions is available here.
- Companies can author or co-sign an op-ed in a state media outlet and/or speak on record with business press.
- Prepare for workforce impact by conducting a self-audit to identify and redress obstacles faced by employees who need to obtain abortion and other reproductive health care, including plan limitations, limitations in services offered by network providers, and the distance of providers who offer comprehensive care. Companies should subsidize travel costs for employees who need to go out of state to receive abortion care.
- Companies should discontinue political giving to elected officials working to undermine access to reproductive healthcare, as well as political committees, and review criteria used in making these allocations in the 2022 cycle.
- Employee Resource Groups can ask their employers to engage lawmakers privately as well as speak out publicly on the impacts to current workers, prospective employees, and the communities of which they are a part. ERGs should emphasize the alignment between supporting reproductive health and upholding gender and racial equity commitments.
- There may be opportunities for companies to sign amicus briefs to challenge these laws.
- Donate to direct service organizations which help people get the urgent, timely care they need by addressing barriers to care.
How is what is happening in the states related to the Supreme Court cases on abortion?
What’s happening in Texas is part of a bigger effort to dismantle access to comprehensive reproductive healthcare, including abortion, which is constitutionally protected. The pending U.S. Supreme Court case, Dobbs v. Jackson Women’s Health, could overturn or dismantle Roe v Wade. If Roe were overturned, abortion would be likely to quickly become illegal in 24 states, impacting 41% of women across the country. Nationally, the average distance a patient would need to travel to reach a provider would be 279 miles, up from 35 miles. Women of color as well as people in the South and Midwest will be disproportionately harmed.
The following states have suggested they may review or amend their states’ laws to mirror Texas’s legislation, which effectively bans abortions after six weeks: Arizona, Arkansas, Georgia, Indiana, Mississippi, Missouri, Nebraska, North Dakota, South Carolina, South Dakota and West Virginia. Kentucky, Louisiana, Oklahoma, Ohio and more are expected to follow Two states to note in particular given the significant business footprint:
- Florida: Already introduced legislation that tracks Texas’ new law. This ban, like Texas’ law, would only be enforceable by private citizens, who can collect a $10,000 bounty by filing a lawsuit. Abortion providers or anyone who helps a patient could be sued. And like the Texas law, the bill contains no exception for rape or incest. Popular Information and Bloomberg have been reporting on this with a business lens. The annual costs of existing abortion restrictions already cost the state of Florida $6.6 billion according to Institute for Women’s Policy Research. Data on the impact of a potential ban on talent mobility to Florida was launched and covered in the state press.
- Ohio: The state is advancing a ‘trigger ban’ which would ban abortion automatically if Roe is overturned. The annual costs of existing abortion restrictions already cost the state of Ohio $4.5 billion according to Institute for Women’s Policy Research. Data on the impact on talent mobility of a potential Ohio ban reveals:
- Large majorities of top talent in Ohio support abortion access and consider the issue part of gender equity in the workplace;
- 53% of Ohioans, including 62% of Ohio women, say they would not apply for a job in a state that passed a ban like Texas; and
- About 40% of Ohioans, including 25% of Ohio women, say they would consider moving out-of-state if their lawmakers passed a similar ban
Who is most impacted by state-level abortion restrictions and Supreme Court decisions?
Using the example of Texas, laws like S.B.8 impact all pregnant people in the state, but especially Black women and Latinas due to structural economic barriers leading to lower economic well-being. Texas is already one of 12 states that has not expanded Medicaid and maternal health outcomes are poor. Additionally, Texas has already enacted 25 abortion restrictions in the past decade. During this time, the number of abortion providers in the state has been reduced by half. This new ban is effectively a near-total ban on abortion, due to logistical, legal and financial hurdles that patients would have to navigate in such a small window of time. As legal abortion care in Texas is drastically limited, the average one-way driving distance to an abortion provider has increased from 12 miles to 243 miles, 20 times the distance. Existing restrictions to abortion care as of 2020 in Texas already cost the state over $14 billion annually in economic losses. The NAACP also recently called on free agents in five major North American professional sports leagues not to sign contracts with Texas-based teams on Thursday, citing restrictions to voting and abortion rights.
Companies will have a harder time recruiting top talent as increasingly mobile college-educated talent considers what restrictions signal about the culture of a state. For current and prospective employees and customers – working moms, sisters, cousins, and friends among others – their healthcare access will be harmed and their economic stability will be impaired. Companies as employers are having to navigate a confusing landscape of providing support to workers and balancing legal vulnerability and HR implications.
How will people get the care they need?
Providers of comprehensive reproductive health care, includng abortion, liken providing services in states with draconian laws to providing care in a war zone. Patients go to extraordinary lengths to get the procedure – traveling hundreds of miles, sleeping in cars, figuring out childcare, choosing between food and healthcare. Patients are confused and worried already as providers navigate constant battles to keep doors open. Already providers fly in from out of state to deliver care where health care capacity is limited. Even flight delays cause appointment delays — yet patients are deeply appreciative for getting the care they need. No patient should have to travel hours across a state or across state lines, arrange childcare, secure time off work — as a result of unnecessary, dangerous, and unconstitutional healthcare restrictions.
Contact: For questions, updates, or specific corporate-facing needs, feel free to contact Jen Stark, Senior Director, Corporate Strategy at Tara Health Foundation.