Executive View: A Looming Roe v. Wade Ruling Has Business Leaders on Watch

​Legal minefields. Health coverage considerations. Travel reimbursement decisions. Workplace disagreements.

All are topics company executives must consider should the U.S. Supreme Court strike down the landmark Roe v. Wade ruling that legalized abortion in this country.

Last month, a leaked draft revealed that the conservative justices on the high court were preparing to overturn Roe v. Wade, leaving abortion regulation to the states. A ruling is expected shortly.

As company leaders await the court's decision, one of their top considerations is whether—and if so, how—to cover costs for employees seeking abortions in states that won't allow the procedure should Roe v. Wade be struck down.

Several companies have already taken the lead.

Microsoft, for instance, announced last month that it would expand benefits to cover costs for workers seeking abortions in different states.

Others are creating relief funds to pay expenses for employees—and their dependents—who must travel out of state for abortions. Some are offering a one-time bonus for the travel and procedure costs in a state permitting abortive care.

Because medication abortions represent a growing percentage of all abortions, some companies may provide coverage for such medications.

Travel and Other Accommodations

Should many states introduce abortion bans, women seeking to end their pregnancies may have to travel far to a state that continues to allow such procedures. The Myers Abortion Facility Database has already compiled a county-by-county map of just how far the nearest clinic might be for women living in regions that outlaw abortive care.

As a result, some employers plan to cover travel expenses for out-of-state medical procedures, including abortions, if they aren't available locally.

Amazon, Yelp, Apple and Citigroup are among the firms announcing that they would reimburse employees who had to travel certain distances to seek reproductive care.

After Texas law allowed citizens to sue drivers who transport women to abortion clinics, ride-sharing companies Lyft and Uber vowed to cover drivers' legal fees should their drivers face such lawsuits. Software company Salesforce said it would help Texas workers relocate out of state if they could not find the reproductive care they needed in the Lone Star state.

Among the other benefits employers may need to consider if they wish to support women seeking abortions are travel benefits for an employee's relative—maybe a sister or mother—who wants to accompany a woman to an abortion clinic; paid time off to seek reproductive care out of state; grief counseling, perhaps through an employee assistance program; and paid parental leave, child caregiving benefits and flexible work schedules for more women who give birth rather than abort pregnancies.

Legal Considerations

Workplace attorneys, however, warn of the legal risks of providing abortion benefits should the Supreme Court overturn Roe v. Wade.

The Philadelphia-based law firm of Morgan Lewis, for instance, recommends to clients that they consider the scope of state prohibitions on abortion. "Depending on the scope of state limitations, employers may not be allowed to pay for or reimburse expenses related to prohibited procedures occurring within that specific state," the firm recently wrote to clients. 

Company leaders, the firm noted, should also consider the extraterritorial application of state laws. In states that ban the aiding and abetting of an abortion, "there will be a question as to whether those laws apply to out-of-state events."

"For instance," the firm writes, "it may be argued that a company or company benefit plan violates the Texas law if it reimburses a Texas-based employee for an abortion received in a state that permits abortion, or for related travel costs."
  
Pressure to Weigh In

Companies should brace for pressure from employees and consumers to take a stand on the Roe v. Wade ruling.

Already, supporters of abortion rights have staged demonstrations across the country, including outside the homes of several Supreme Court justices.

"For businesses there is no politically safe decision, and they may have to choose which enemies they can afford to make," wrote The New York Times. "Taking a stand, whether by speaking up, contributing to causes or withholding funding from politicians as punishment, can have consequences."

The Times also warns that tension between businesses and politicians may intensify. 

"Disney's recent battles with Ron DeSantis, Florida's Republican governor, over a law prohibiting discussion of gender identity in some public schools cost the company its special tax privileges and goodwill from key Republicans," the paper reports. "Last year, companies that stood up for voting rights in Georgia, Florida, Texas and other states faced political retribution, or at least threats of it. As companies take stances on social and cultural issues that anger people on the right, conservative politicians are spurning their contributions and pushing back. Expect more of these conflicts."

Handling Heated Workplace Discussions

Conversations about abortion can create discord and diminish a company's culture if not handled properly, according to a recent SHRM Online article.

While some employers ban workers from using internal social media outlets for political, racial or religious conversations, the article suggests that "facilitating rather than discouraging political or racial discussions in the workplace is the best approach."

"Some political discussions are protected by labor laws," the article reads. "However, banning employees from having conversations on sensitive topics like abortion rights becomes more difficult when those conversations are held in the break room or elsewhere at work."

Alexander Alonso, Ph.D., SHRM-SCP, is chief knowledge officer at the Society for Human Resource Management (SHRM). In his new book, Talking Taboo: Making the Most of Polarizing Discussions at Work, he explains why some topics are taboo while others are not, then offers navigation strategies for real-world conversations on taboo topics such as politics, race, religion, sex and gender. 

SHRM also offers a Featured Resource Page on Roe v. Wade.