The Three Things Human Resources Professionals Now Need To Do Following The Dobbs Decision (Reversing Roe)

Here are all 213 pages of the Slip Opinions of the SCOTUS in DOBBS, STATE HEALTH OFFICER OF THE MISSISSIPPI DEPARTMENT OF HEALTH, ET AL. v. JACKSON WOMEN’S HEALTH ORGANIZATION ET AL. This is almost half-a ream of paper. Heck, the Syllabus alone (the Clerk of the Court’s unofficial summary of the case decision) is eight pages in length! (SCOTUS decisions a century ago were usually shorter than eight pages from start to finish, including any Concurrences and Dissents). By the way, SCOTUS’ Final Decision looks remarkably like the “leaked” version Politico published on May 2, 2022 (I knew you were wondering if the public outcry following the leak would operate to change the text much. It did not. Nor did it in early January 1973 when the Roe decision itself also leaked to the New York Times ahead of the SCOTUS’ formal announcement of its Opinion).

Here is the index of the three things HR professionals need to know and actions they need to consider if you are responsible for employment policies or benefits touching abortion issues in the workplace:

• Dobbs is a States’ Rights Decision (Your state-law spreadsheets just grew);
• Dobbs is an Emotional Decision for Many People, Not Just Women (Intra-company discussion may be in order)
• Review Your Company’s Existing Employee Policies and Benefits Regarding Abortion (time to keep, discard, or write something?)

Now let’s look at the details behind each of those three headlines:

Dobbs is a States’ Rights Decision

SCOTUS found, as a matter of law, that the U.S. Constitution does not protect the right to abortion. But SCOTUS did not rule that abortion was illegal. Rather, SCOTUS threw the decision about whether to permit abortion, or not, or in what fashion, to both the federal Legislature (U.S. House and Senate) and to the legislatures of the fifty states within the United States and of its six permanently occupied territories (the District of Columbia; Puerto Rico; the U.S. Virgin Islands; Guam; the Northern Mariana Islands; and American Samoa).

HR professionals throughout the United States have been struggling for years trying to keep up with the never-ending explosion of state employment laws with often conflicting requirements driving HR policy in companies that span more than one state. A now common debate is whether your company will choose the “Lowest Common Denominator” approach (adopting nationwide the local employment rule which is the most stringent (worst for the employer/most favorable to the employee), or whether the company will adopt the “Checkerboard” approach (adopting different employment policies and rules in each local state/county/city tailor-made to the local political potentate)? Most HR professionals in companies that operate in more than a half dozen states already think the steadily growing states-rights movement is a ”nightmare.” Well, it just got worse. A lot worse! And, your spreadsheet of the local employment laws in the 50-states just grew larger as you now design employment and benefit policies in the aftermath of Dobbs. A LOT BIGGER!

The rest of this Blog is evidence in support of Human Resource Manager requests for:

1. bigger Advil/Tylenol budgets (Ha! Ha! There must be some levity among the consternation breaking out nationwide on both sides of the aisle over the Dobbs decision, or else people are just going to crack. I already have HR professionals who have happily worked side-by-side for years who are now not talking to each other); and
2. bigger HR staffing budgets. Yeah. The HR world just got more complex…again. Not only will companies now be “off to the races” as fifty state legislatures now wrestle with the political issues both pro and con abortion, but this important SCOTUS case decision vividly reminds state legislatures that they may play a vital and important role in social and employment law policy, IF THEY CHOOSE TO DO SO. And, unfortunately, the Dobbs decision comes at a time the states have recently gotten comfortable to start mandating more and more local employment rules different from on-point federal employment laws. It is not just California, New York, and New Jersey out there on the edge tossing out outlier employment rules anymore. Rather, it is virtually every state throwing out a new employment rule here and there. If the states’-rights horse was not already “out of the barn,” it is now galloping wildly down the trail without a bridle, saddle, or rider.

The Guttmacher Institute brilliantly anticipated the issue of “what’s next?” in the states after the SCOTUS decided Dobbs in this June 1, 2022 Blog titled: “Abortion Policy in the Absence of Roe.” This is an interesting (and comforting) Blog to read since it makes clear that it is not the “Wild West” out there as to state abortion laws. Rather, the Guttmacher Blog reports that we are all walking into a rather large and sophisticated web of established state laws on abortion, both pro and con. The states have already laid down a lot of laws on abortion rights, or not. Guttmacher reports that “22 states [already] have laws that could be used to restrict the legal status of abortion” and that “16 states and the District of Columbia have laws that protect the right to abortion.” The Guttmacher Blog then goes on to break those two broad divisions into subsets of like states within each of the “pro-abortion” and “anti-abortion” statutes. There are not two positions, “pro” or “con,” but a third broad position of “pro, but in the right circumstances” (i.e., rape/incest/deformity, etc.)

Indeed, Justice Alito, author of the Majority Opinion (and joined in the Opinion, or in just the Judgement, by five other Justices) in the Dobbs case, began his Opinion by referring to what he decided were three prominent divisions of thinking about the issue of abortion in the United States at this time:

“Abortion presents a profound moral issue on which Americans hold sharply conflicting views. Some believe fervently that a human person comes into being at conception and that abortion ends an innocent life. Others feel just as strongly that any regulation of abortion invades a woman’s right to control her own body and prevents women from achieving full equality. Still others in a third group think that abortion should be allowed under some but not all circumstances, and those within this group hold a variety of views about the particular restrictions that should be imposed.” (Majority Op at p. 1, first full para. Note: The Opinion of the Court is separately numbered from the Syllabus and follows the Syllabus in the published decision.)

And, as we get ready for the coming political debates in each of the states, here is a sobering set of facts that the Supreme Court Syllabus threw down in its summary of the Dobbs decision about state law treatment of abortion before Roe:

“Until the latter part of the 20th century, there was no support in American law for a constitutional right to obtain an abortion. No state constitutional provision had recognized such a right. Until a few years before Roe, no federal or state court had recognized such a right. Nor had any scholarly treatise. Indeed, abortion had long been a crime in every single State. At common law, abortion was criminal in at least some stages of pregnancy and was regarded as unlawful and could have very serious consequences at all stages. American law followed the common law until a wave of statutory restrictions in the 1800s expanded criminal liability for abortions. By the time the Fourteenth Amendment was adopted {Editor’s Note: ratified July 9, 1868], three-quarters of the States had made abortion a crime at any stage of pregnancy. This consensus endured until the day Roe was decided.” (Syllabus at p. 3, first full para)

So, the coming political battles in the states are going to be vitriolic and just plain ugly. And, you can bet there will be some reversals of the state laws which have already laid down a “settled” statutory rule—one way or the other.  Every state statute, whether pro or con, is now up for debate, with renewed passion on both sides. So, HR professionals designing employment policies and benefits touching abortion issues in the workplace are going to have to be alert to local state changes as they unfold…intensively for likely the next five years, or so.

And to make the HR challenge more difficult, state laws on abortion rights are going to be “Checkerboard”: no “one-size-fits-all” rule will emerge from the fifty states. But, that is exactly how the Founders of the Republic of the United States envisioned state laws developing and as they hoped. James Madison (who played a pivotal role in the enactment of the U.S. Constitution and later became the fourth President of the United States) published an essay which is today called No. 45 of the Federalist Papers (the unofficial “legislative history” of the meaning of the U.S. Constitution). In Federalist No 45, Madison explained the relationship of the states to the coming federal government the coming U.S. Constitution envisioned and wrote about the powers to be reserved to each state to govern the “lives, liberties, and properties of the people…” and to soothe concerns among the public that a strong central federal government would invade and supersede local state governments:

“The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State. The operations of the federal government will be most extensive and important in times of war and danger; those of the State governments, in times of peace and security. As the former periods will probably bear a small proportion to the latter, the State governments will here enjoy another advantage over the federal government. The more adequate, indeed, the federal powers may be rendered to the national defense, the less frequent will be those scenes of danger which might favor their ascendancy over the governments of the particular States.”

So, by design, there is going to be lots of variety in “pro” and “con” abortion laws. Buckle Up, HR!

Dobbs is an Emotional Decision for Many People, Not Just Women

Is an intra-company discussion needed or appropriate for your company?  Many corporate consultants advise that employees in the United States increasingly look to the Chief Executive Officer, Executive Director, or President—the top dog by whatever title—for direction and the association of the company to social issues (and not just in NGOs). While companies and HR used to scorn taking social positions, the rise of ESG (Environmental, Social and Governance) Shareholder Investor strategies is the “tail which has wagged the dog.” Investor concerns about corporate adoption of what they feel are appropriate ESGs has now led to increasing numbers of employees asking and expecting their “top dog” corporate leader to identify what ESG values the company embraces? As federal and state governments fall into disregard and have largely lost credibility with the public, pollsters report that the public now widely regards U.S. companies as the most reliable and trustworthy of the country’s major institutions to help each American set their moral compass. (I know: every President and every state Governor thinks she or he does that. Wrong.) And, consultants report that more and more employees consciously choose where to work based on the company’s ESG positions.

As a result, HR needs to quickly decide on the heels of the Dobbs decision whether the company needs to reach out to its employees and make a statement…and if so what statement? Many companies are walking a fine “tightrope,” with many CEO’s, Presidents and Executive Directors knowing that they have a 100% chance of potentially offending either 40% or 60% of their employees, regardless of what they say. Remember, about 40% of Americans oppose abortion (and usually vigorously) while about 60% of Americans tell pollsters (usually vigorously) they favor abortion being legal. So, many of your employees are feeling wounded by Dobbs and many others are feeling elated (“best day of my life” as I heard one Chicago politician say upon hearing the news about the Dobbs case decision).

Whether to reach out to employees during moments of social stress in society is both a “leadership” issue and a “corporate culture issue.” We do note, however, that many of our clients have already initiated policy statements, Zoom conferences with employees (both large and small) to discuss the Dobbs decision, and for HR leaders to show empathy and concern and to provide a structure against which employees may lean for support. We have also heard from several clients that employees either took off work on Friday after the SCOTUS announced its Dobbs decision or asked for permission to take PTO for the rest of the day to process the news. We have also heard several CEOs wonder aloud how to “walk the tightrope” on this issue. A lot of marketing groups we know also worked hard through Friday evening to construct properly balanced “messaging” on Dobbs.

So, decide if you are “in,” “out” or sympathetic to all sides. This is an urgent issue and may affect employee retention.

Review Your Company’s Existing Employee Policies and Benefits Regarding Abortion

Your company’s General Counsel, the top dog manager of your company or institution, and likely also your company’s Board Members probably need and want to know what the company’s current employment policies and benefits say about employee abortion rights and benefits.

• Do you have any employment policies or benefit plans which address abortion issues in the workplace?
• If not, do you need any?
• If so, are they now consistent with the state laws where you have employees? (You need a state-by-state catalog of state abortion laws in the states where you have female employees)
• What does your medical insurance plan allow? Check the “exclusions” and “eligibility” sections of your Plan(s).
• What will the company’s response be to employee requests for Abortion Travel Reimbursement and/or Abortion PTO?
• Do you have a plan to write such a Plan(s)?
• If you have a union making the demand, do you know what your collective bargaining agreement(s) say on the issue(s), if anything, and are you ready to negotiate any union demands?
• Is your company is going to offer a paid benefit to allow employees living and working in states which now criminalize abortions to travel to another state where they do not work to undergo an abortion? [Note: this could be an urgent issue for one or more of your employees who was “next in line” for an abortion in a state where that is now unlawful.]The following very partial list identifies companies that have already announced “Reimbursements to Travel” for abortions, with $4,000 being a growing consensus “travel stipend” number (which in many of the following companies could also be used for “companion travel” to lend emotional support before and after the abortion. Policy call on that sub-issue, too): Adidas, Nike, Disney, Apple, Amazon, Meta (the old Facebook), Paramount, Citigroup, Dick’s Sporting Goods (yes, that’s right: Dick’s), Door Dash, Goldman Sachs (that’s right, even the venerable Wall Street behemoth, not to be outdone by JPMorgan Chase, etc., etc.,) and the list grows daily.
• And, oh my gosh, please do not leave the ADA and HIPPA lawyers out of the loop on these issues, not to mention the HR training needed for HR Generalists to review any required corporate “eligibility paperwork” for employees proving their pregnancy status to qualify for a travel or medical benefit. My head hurts just thinking about those conversations, especially with unmarried employees, a married employee pregnant by someone who is not her husband, those with difficult pregnancies, deformed fetuses, and rape-related pregnancies, etc. The privacy issues just leap out as one thinks about women in sometimes dire straits having to share this kind of detailed “eligibility information” with HR. It will so often just be emotionally wrenching. I almost wonder if it would not be just as well and more sensitive to your pregnant employees and HR staff, if your company is going to sponsor a “Reimbursement to Travel for an Abortion,” to just grant the benefit uncritically and without the need for “eligibility proof” to avoid the often otherwise difficult revelations that few on either side of the table will want to discuss. At a minimum, maybe you could minimize the amount of disclosure to the company needed to just proof of pregnancy and proof of the abortion, without details about why the employee wanted her pregnancy aborted (which details often accompany medical records unless you limit the employee’s doctor from just delivering the whole file—which medical professionals often find easier to do than filling out strange new corporate forms unfamiliar to them.) Your policy call.
• And, do not forget the sex discrimination legal advisers: if you grant women a pregnancy benefit, whether a travel benefit, a medical coverage benefit, or something else, you should consider whether that new benefit will open the door to male employees making demand for male-related benefits your employment policies and/or medical health plan do not otherwise grant eligibility. For example, will men have a claim because of your pregnancy-related benefit for male-related benefits (for erectile dysfunction, perhaps, or other male-specific medical maladies related to procreation).
• And what about the impact on that other sex-based big-ticket medical cost for transgender reassignment surgery (by whatever name)—although we think such surgery costs are more likely than not already legally required for most employers because of their existing medical policy exclusions when combined with the SCOTUS’ Bostock case decision. See our June 6, 2022, Week In Review Blog reporting a case decision that seemed compelling to us holding that denying a female employee–what the Court called “sex change” surgery–violated Title VII. You might also want to read this April 11, 2022 Week In Review Blog discussing the Iowa Supreme Court’s similar holding. This requires a skilled discrimination lawyer to review your medical plan to advise you, given the specific “exclusions” from coverage contained in your existing medical or benefit plans. Don’t try this alone at home!

Be careful out there…