Employers, legislators square off in abortion access fray
Sen. Marco Rubio has introduced a bill that would block companies from writing off reimbursement costs for abortion travel.
The list of major companies that have vowed to reimburse employees for abortion-related travel and health care expenses is growing and already includes Apple, Amazon, Citigroup, Levi Strauss and Lyft.
Businesses considering joining that list likely will turn to their legal departments to assess the ramifications of providing employees with new benefits in reaction to the looming prospect that the U.S. Supreme Court will overturn Roe v. Wade and leave states to decide their own abortion laws.
Related: Restrictive legal landscape driving new employer benefit: Abortion travel assistance
But, at this point, in-house leaders might be wise to advise their companies to wait for the Supreme Court’s actual decision, rather than announce new policies based on a leaked draft that would overturn the landmark 1973 ruling, said corporate governance expert Charles Elson, an attorney who recently retired as a University of Delaware professor.
“If you react now, you’re going to create more issues,” Elson said.
“What if the ruling doesn’t turn out that way/? You’ve suddenly opened a can of worms vis-à-vis your investors, some of whom may agree with the company and some of whom may not,” he said. “Shareholders could question why you’re spending company money on this. Is this a political issue to which a company should stay neutral?”
Elson added, “That’s why it’s always important in these situations to be careful and judicious, which is what general counsels are supposed to do.”
On Monday, Politico published a leaked draft of a majority U.S. Supreme Court opinion that overturns two landmark rulings affirming federal constitutional protections of abortion rights: Roe v. Wade and Planned Parenthood v. Casey. The leaked draft opinion—which the Supreme Court confirmed was authentic on Tuesday—swiftly garnered criticism from companies across the U.S.
Covering workers’ travel costs
Some companies—including the employee experience platform Culture Amp, DoorDash, the creative consultancy InGoodTaste, Levi Strauss and United Talent Agency—announced this week they would provide funding for employees seeking abortion services unavailable in their local area.
But a number of major companies rolled out these initiatives even prior to the Supreme Court leak. They did so in response to a Texas law that went into effect last fall banning all abortions after about six weeks of pregnancy and in response to a similar Oklahoma bill that its legislature passed April 5. Gov. Kevin Stitt signed that measure into law Tuesday.
Among those doing so were Apple, Bumble, Citigroup, Lyft, Match.com, Salesforce, Uber and Yelp. Their policies variously offer travel funding, reimbursement for legal fees and help relocating to states with less-restrictive access to abortion services.
Hours before the leak Monday, Amazon announced it would pay U.S. employees as much as $4,000 to cover travel costs related to non-life-threatening medical treatments, including elective abortion.
Elson said that, while the nation awaits the final Supreme Court ruling, corporate counsel should be working with their HR department colleagues to assess what abortion-related benefits their companies might offer and to analyze the potential risks.
“The big issue is, is it an appropriate expense?” Elson said. “I would think so. But because it’s such a hot issue, any action that’s going to be taken has significant risk of some kind of shareholder or even potential regulatory response.”
Regulators prepare a counter-strike
Sen. Marco Rubio, R-Florida, already has introduced a bill that would block companies from writing off the cost of reimbursing employees for abortion travel or child gender transition procedures.
Houston-based corporate compliance lawyer Ryan McConnell of R. McConnell Group, a boutique law firm focused on governance and litigation, noted that corporate legal departments should be prepared for the possibility of states banning travel for abortions.
“You may also have employees wanting to live in states that provide more rights to their residents than those that provide less rights,” he said. “That will be a challenge for companies and may cause them to rethink or expand some of their policies.”
Despite these potential challenges, Mark Riedy, co-founder and chief operating officer of InGoodTaste, said it was important for his company to act now.
“We felt like making our policy quickly versus understanding every possible implication was the correct thing to do in the current circumstances,” Riedy said in an email Thursday.
“There are any number of ways that federal and state governments may seek to limit citizens’ rights,” he added. “And we will do our best to combat that with forward-looking, creative policies.”
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