In the days after the Supreme Court declared that a woman’s body was not her own, a staggering number of American corporations promised to help their employees circumvent state law. Bank of America expanded the list of medical treatments eligible for travel-expense reimbursement to include organ transplant and reproductive health care, “including abortion.” Disney, Warner Bros., Sephora, Dick’s Sporting Goods, and Vanguard announced similar initiatives, as has Vox Media (which owns this publication). Patagonia, which recently offered “training and bail for those who peacefully protest” following the Dobbs v. Jackson Women’s Health Organization decision, reaffirmed its position on abortion-related travel and “supporting employees’ choice.”
But others worded announcements more cautiously. “We intend to offer travel reimbursements, to the extent permitted by law,” a representative for Meta told the New York Times, noting that it was assessing the “legal complexities involved.” Wells Fargo told employees, similarly, it would reimburse them for travel “in accordance with applicable law.” After all, legislation has already been drafted to try to prevent people seeking abortion from crossing state lines. Roe’s overturn is the beginning of the process to gut abortion rights, not the end. No one can say precisely what will happen next.
In Zoom meetings and Slack channels across the country, human-resources professionals are weighing their options, holding conference calls with their benefits managers or conferring with in-house counsel. “We’re trying to figure out what the ramifications are,” says one HR manager who works at a financial-tech start-up in California. “Does our health plan even cover abortion services? Would somebody be able to expense travel through their flexible spending account?” There has been a real “lack of clarity,” she says, even if her company wants to provide an abortion-related benefit to its staff.
Confusion about how best to respond to a once-in-a-generation ruling appears widespread. In New York, the attorney general recently formed a task force of 21 law firms and several reproductive-rights groups to offer legal support to individuals following the overturn of Roe. The task force advertises its services to doctors and people seeking abortion; more quietly, it is also looking into issues surrounding employer-sponsored benefits like these.
Gartner, a consultancy targeted toward executives, conducts a monthly survey of hundreds of business leaders. In May, shortly after the Dobbs decision leaked, 60 percent of respondents said they didn’t intend to change their benefits plans. Now, says Gartner principal researcher Crystal Styron, over 80 percent are either enhancing their offerings or “evaluating their options” in this new landscape in which the right to an abortion is not enshrined.
“Increasingly, organizations are being asked to weigh in on these things,” she says, “and so we’ve been getting a lot of questions about what other people are doing or how we recommend they respond.” The answers she gives vary depending on employee demographics and how much risk a business is willing to take on. In a matter of weeks, the space in which a constitutional right once was is being filled by focus-grouped messaging and calculated estimates of abortion’s ROI.
The pledges posted on LinkedIn or announced at all-hands meetings are an outgrowth of what consultancy McKinsey refers to as the new social contract between employers and employees who are increasingly concerned with justice both inside the office and out. Consumers expect businesses to take a strong political stance, the thinking goes — and in a tight labor market, offering explicit pro-choice policies may attract liberal job-seekers. This expansive sense of corporate responsibility is what pushed an army of diversity-and-inclusion consultants into white-collar offices following the Black Lives Matter protests of 2020 and inspired brands like Coca-Cola to tweet that what happened on January 6 was an “offense to the ideals of American democracy.”
But routing bodily autonomy through the labyrinthine standards of corporate-sponsored care is bound to get messy. At Dick’s Sporting Goods, for instance, travel benefits for abortion are available only to employees and their dependents covered under the company’s existing medical plan, which means they must either be on salary in the corporate office or work a certain number of hours. In large businesses with self-funded insurance plans, abortion travel might be negotiated along with a yearly contract with a large insurer, lumped in with travel benefits for locally inaccessible treatments such as chemotherapy of IVF. (One large corporation that hasn’t yet taken a public stance emailed its employees last week to announce a $10,000 cap for “medically necessary treatment” not available within 50 miles of their home. As one of its HR managers noted on a call with me, there were already many places in America where you couldn’t get an abortion that close.)
In smaller companies, travel for abortion care might be reimbursed by a firm as an expense, or doled out as a stipend, or run through the tax-free flexible spending accounts into which some of an employee’s pay is routed, assuming they have opted in. Two benefits managers I spoke to mentioned the application of standard start-up perks — such as a monthly wellness stipend — toward abortion-related care, a policy that unintentionally reimagines abortion access as a perk like a luxury-gym membership or free parking. Styron, the researcher at Gartner, mentioned PTO sharing, where colleagues could “donate” their time off to an employee in need. But for employers, an additional expense might be “supplementary legal insurance,” she says, “to help employees that are having to deal with civil or criminal cases” — which underlines the trickiest aspect of employer-backed abortion travel: the potential, however theoretical, for criminal liability. It’s one that the corporations declaring themselves pro-choice have yet to publicly touch, even as the state legislature in Texas threatens “swift and decisive” legal action against companies including Citigroup and Lyft if they pay for local employees to get an abortion out of state.
In late June, the largest professional human-resources organization in the country, SHRM, published an advisory on its website addressing best practices when it comes to managing abortion benefits; along with travel and tax issues, the notice addressed those liability risks. In states like Texas, where individuals are permitted to sue anyone who “aids and abets” an abortion after six weeks, an attorney predicted future litigation that might impact a firm offering benefits like these. Jennifer Shinall, a law professor specializing in labor and gender at Vanderbilt, expects to see laws specifically targeting these corporate-sponsored programs. In her home state of Tennessee, she says, “I very much expect for there to be a law that tries to penalize corporations” paying for abortion-related travel. At the very least, she would expect a prohibitively expensive fine.
Dana Sussman is the acting executive director of National Advocates for Pregnant Women, an organization that has been tracking the criminalization of pregnancy for over a decade. “There’s so much unknown right now,” she says, when it comes to how the torrent of state laws regarding abortion will shake out. And there are no shortage of existing criminal laws that could, theoretically, be wielded against someone traveling across state lines to procure an abortion. In NAPW’s experience, prosecutors tend to try out legal theories just to see if one sticks. Many such cases are thrown out; some aren’t. Sussman wonders if businesses are prepared to cover legal fees if one of their employees becomes the example a prosecutor wants to use: “It’s nice to announce these things, but I don’t know that they’ve truly contemplated all the risks associated with it for their employees” or that these programs “require that they would have private information in a legal gray area.” Which isn’t to say an HR professional would compromise sensitive data, just that subpoenas exist. And further, Sussman finds these policies to “be the lowest bar they could pass” to support abortion rights, particularly given how many large corporations are also donating to anti-choice politicians. “It’s a good PR move,” she says.
Last week, I spoke to an HR manager at a large company who was sympathetic to the idea that an employee wouldn’t want to tell human resources about their abortion. She remembers, years ago, the agony of a colleague who had to disclose the details of her miscarriage in order to get reimbursed. With abortion, as with so many other health issues, the process of procuring receipts and arguing with a benefits provider over the phone can feel invasive. She gave me a few hypotheticals: What happens, for instance, if a person has to be airlifted from an anti-abortion state for a medical emergency requiring the termination of a fetus? What if, the next month, they need an elective abortion, but the stipend has already run out? She is sensitive to the privacy issues involved, she says. But “you should be worried about your government, not your HR department,” when it comes to speculation about how information may be weaponized down the line.
“Frankly,” Sussman agrees, “it’s going to be your neighbor or your ex-partner who wants to weaponize this information against you. But I do think it raises further concerns about what kinds of disclosures one has to make in order to avail themselves of this benefit.”
The coming weeks and months will put employer-supported abortion care — and HR reps’ blood pressure — to the test. So far, the impact has been mostly in that vague but omnipresent metric of consumer sentiment. “Most of the workers that these policies are affecting would have had the means to do it anyway,” says Shinall. Which raises the question of who exactly these announcements are for. Only in a market in which brands are incentivized to signal their commitment to democratic norms, and only in a country in which the right to stay alive is contingent on holding down a certain kind of job, could a corporation like Nike emerge on the front line of the battle over a woman’s right to choose — or could access to safe and legal abortion be rendered as a perk, like a Peloton subscription or stock options that will someday vest.
Recently, one of the HR managers I spoke to had a conversation with her boss about how frequently corporations had been forced to fill in the government’s gaps. “It’s been exacerbated over the last few years,” she says, as private vendors offered mental-health support or counseling or reproductive care that both the state and private insurance companies refused to fund. “How much more of the social safety net is going to be picked up by private employers?” she asks. But there is an obvious limit to the benevolence of a corporation. Your job doesn’t love you; it also can’t save you from the politicians who want you dead.
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