HR Policy Discusses Employer Strategies in Response to Leaked SCOTUS Draft

Following the leaked Supreme Court draft opinion potentially overturning Roe v. Wade, the Association held a call featuring staff and member companies to discuss employer communication strategies and the legal implications of maintaining health care benefits that cover expenses related to access to abortion.

The call featured member companies discussing their approaches to employee and public communications related to Roe v. Wade being overturned, as well as current or planned health care plan coverage for abortion access, among other issues. Participants noted the importance of having established and consistently expressed company principles and values, and using such principles and values for evaluating the right approach to this uniquely complex issue. Additionally, commitments to diversity, equity, and inclusion may heighten employee and public expectations of a public response to the increased potential for restrictions on access to abortion.

Some companies have already issued public statements related to the draft opinion leak. Levi Strauss & Co. issued a statement calling access to abortion “a business imperative” and encouraging other companies to “make their voices heard,” while Yelp announced that it would double-match all employee donations to Planned Parenthood and other abortion access organizations. Meanwhile, other companies are already facing shareholder proposals on reproductive rights, including Lowe’s and Walmart. Other companies have chosen not to make public statements at this time.

Participants also discussed the key legal questions related to Roe v. Wade being overturned and subsequent state laws restricting abortion access. Currently, 23 states are poised to significantly restrict access to abortion or ban the practice should Roe v. Wade be overturned. Participants discussed how such state laws could affect employer health care plans that cover expenses related to access to abortion, including whether the Employee Retirement Income Security Act (ERISA) may preempt such state laws, and whether such state laws could reach out of state actions. For a more detailed discussion of legal considerations for employers related to Roe v. Wade being overturned, please see this guide by HR Policy Legal Council member Morgan Lewis. 

Outlook: A final decision could be issued sometime in June, although given the unprecedented nature of the leak, the timeline could extend beyond that. Although it is possible the final opinion may differ, at least rhetorically, from the draft that was leaked, the overall result seems unlikely to change, given the current makeup of the Court. In the meantime, employers should evaluate their potential responses. HR Policy will continue to hold discussions on the many issues presented by potential change in the law and provide further resources for member companies.