Access to comprehensive reproductive health care is central to gender equity and people’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.

How is SB 8 in Texas different from other abortion restrictions? 

On May 19, 2021, Texas Governor Greg Abbott signed Senate Bill 8 (SB 8) into law. This bill 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. SB 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.

SB 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 plaintiff’s claims, the Supreme Court refused to step in to block the law immediately.  That means for now the law will remain in effect while the litigation continues in the lower courts, denying Texans of their fundamental constitutional rights.   

Recently, the Department of Justice (DOJ) announced that they have filed a lawsuit in federal district court in Austin challenging Texas’s abortion ban and seeking a preliminary and permanent injunction blocking the law’s enforcement by the State of Texas as well as private individuals it has effectively deputized to enforce the law. In addition, the Biden-Harris administration tasked the Gender Policy Council, the U.S. Department of Health and Human Services, and the Department of Justice to coordinate a government-wide response on how the administration can push back against the Texas law.

How can companies respond to this crisis in Texas? 

  • Companies can state that their workplace affirms and supports workers who need access to comprehensive reproductive healthcare services including abortion.
  • Texas limits private insurance coverage of abortion, but companies that self-insure can customize their coverage without respect to state mandates or restrictions with respect to abortion. Companies that currently extend health insurance that covers abortion care should affirm their intention to continue doing so. Companies that do not offer this coverage, but which have the ability to do so by virtue of being self-funded, should do so.
  • Corporations should undertake a legal risk assessment of their potential liability under SB 8, including an analysis of whether the passage of the law establishes a precedent for the further curtailment of their rights as employers to choose which health care services they will insure.
  • Companies should conduct a self-audit to determine obstacles faced by workers who need to obtain abortion care, including limitations imposed by the corporate health care plan, network providers, or the distance of the nearest provider. Following this analysis, at a minimum:
    • Companies should ensure contraceptive products and services beyond the requirements of the Affordable Care Act.
    • Restrictions to reproductive healthcare providers also threaten the availability of transgender-inclusive health care. Companies should also state their affirmation and support for access to this care.
    • It is important to note that even providers such as rape counselors in Texas could be sued under SB8 and therefore these services could become less available. 
  • 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.
  • Businesses can advise lawmakers that SB 8 threatens the health and wellbeing of their workers and impacts the talent pool in Texas, and makes it more difficult to recruit workers from out of state.
  • Companies can donate to organizations working to alleviate the harm done in Texas by SB 8. 
  • Companies and their PACs should cease making political donations to the lawmakers who sponsored or approved laws that restrict access to reproductive health including abortion, in Texas and other states.

Is what is happening in Texas related to the pending Supreme Court case 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 22 states, impacting 41% of women of childbearing age. 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. 

When this legislation was introduced in Texas, it was well known that the courts had stopped other bans in numerous states from being implemented. This law was designed to prevent courts from even reviewing it by turning enforcement to any member of the public to bring suit instead. By depending on a pool of vigilantes to carry out enforcement, the law sets a dangerous precedent for the country.

Why should a company speak out against SB 8?

Comprehensive reproductive health care, including abortion access, is necessary for businesses operating in Texas and many other states where similar bans are slated to advance in the coming months. 

  1. Widening the Pipeline and Attracting Talent: Women in states with better access to such care have higher rates of labor force participation and more frequently pursue full-time employment. Women (and men) also consider the policy environment in career decisions—a majority of college-educated talent (two-thirds) say they would not apply to a job in a state that has recently banned abortion.  By supporting comprehensive reproductive health access, companies can improve their own competitiveness for talent. 
  2. Supporting and Retaining Existing Talent: To enter and advance in the workforce, people must have the agency to choose if and when they want to have children. Women who cannot access abortion when needed are three times more likely to be unemployed and four times more likely to have a household income below the federal poverty level. Contraception and abortion access are also tied to women’s ability to invest in education and training, ultimately affecting opportunities for advancement. As a result, lack of access to reproductive health care heightens attrition and turnover costs.
  3. Providing High-Impact Benefits with Low-Cost Investments: Reproductive health benefits, particularly contraception and abortion, are inexpensive relative to companies’ overall health care costs. Conversely, costs for contraception and abortion can represent significant expenses for women and their partners if they lack adequate insurance coverage or geographic access.
  4. Delivering on Diversity and Inclusion: For women of color, a lack of access to affordable reproductive health care on top of existing racial and gender inequities hinders their ability to achieve economic security and fully participate in the economy. Because of systemic racism and other structural barriers, women of color are more likely to face challenges in accessing comprehensive reproductive health care. Disparities in health outcomes persist for women of color across a range of reproductive health issues—including maternal mortality, cancer screenings, and pregnancy protections in the workplace.
  5. Preparing for Greater Scrutiny: Stakeholders are increasingly calling on corporations to take stands on issues—and reproductive health is no exception. Laws and policies have a lasting impact on all employees, both those who have private insurance through their employers and those who access health care through marketplace plans or government assistance programs. Shareholder resolutions highlighting the disconnect between corporate values and business with political giving at Pfizer, The Home Depot, and JP Morgan received historic support.

Is what is happening in Texas related to the pending Supreme Court case 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 22 states, impacting 41% of women of childbearing age. 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. 

When this legislation was introduced in Texas, it was well known that the courts had stopped other bans in numerous states from being implemented. This law was designed to prevent courts from even reviewing it by turning enforcement to any member of the public to bring suit instead. By depending on a pool of vigilantes to carry out enforcement, the law sets a dangerous precedent for the country.

Who will be most impacted by this law in Texas?

Companies will have a harder time recruiting top talent to the state. Current and prospective employees and customers — working moms, sisters, cousins, and friends — will be harmed and their economic stability will be impaired. The burden of SB 8 is on all women in Texas, 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 have 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. 

Existing restrictions to abortion care as of 2020 in Texas already cost the state over $14 billion annually in economic losses. Even before SB 8, a new report by Oxfam America ranked Texas as the 48th best state for working women in 2021, making it the fourth-worst in the country

Companies as employers are having to navigate a confusing landscape of providing support to workers and balancing legal vulnerability and HR implications.

Is abortion available in Texas currently?

SB 8 bans abortion two weeks after a missed period and lets strangers sue people who help someone get an abortion. As of September 1, people needing abortions after that time must travel out of state to get the care they need, if they can.  The situation may be evolving so people should visit www.needabortion.org for the most up-to-date information on where SB8 stands and abortion access in the state. 

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. Restrictions to abortion care in Texas already cost the state over $14 billion annually. Simply put, pregnant people have the right to make their own healthcare decisions which are not directed by politicians, neighbors, complete strangers, or anyone else. 

How will people get the care they need? 

Providers of comprehensive reproductive health care, including abortion, liken providing services in Texas 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. 

Now with SB 8, health centers, medical staff, and volunteers are worried about being sued and being vulnerable to personal and financial risk. Already providers fly in from out of state to deliver care where health care capacity is limited in Texas. 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. 

This is just the latest in a long series of actions Texas has taken to attempt to restrict access to abortion care.  In 2016, the U.S. Supreme Court invalidated key components of HB2, a Texas law imposing draconian regulations on abortion clinics. 

Contact: For questions, updates, or specific corporate-facing needs, feel free to contact Jen Stark, Senior Director, Corporate Strategy at Tara Health Foundation.