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Corporate Social Justice, Health Care & Wellness
Regulation of Gender Affirming Health Care Was A Major Trend in the 2023 Legislative Sessions
December 1, 2023 | Sandy Dornsife
Key Takeaways:
- In May, Politico published a leaked draft opinion by U.S. Supreme Court Justice Alito that would overturn the 1973 decision in Roe v. Wade. If the final decision the Court is expected to announce soon is similar to this draft, this will shift many policy decisions on reproductive issues to the state level.
- Currently, 24 states either have abortion restrictions already on the books (although unenforceable while Roe is in effect) or have enacted “trigger laws” designed to automatically restrict abortion access if Roe is overturned. Another 16 states and D.C. have laws that protect access to abortions. That leaves 10 states without current laws that significantly restrict or protect abortion access in a post-Roe era.
- In this article, we also review the existing partisan control of state legislatures and gubernatorial offices, along with the coming elections, to anticipate which states are most likely to consider new laws if Dobbs is decided consistent with the leaked draft. We also provide suggested considerations for businesses that are deliberating whether to engage on this or other social policy issues percolating in the states.
At the end of June, the U.S. Supreme Court officially reversed Roe vs. Wade, paving the way for further state activity on abortion and reproductive rights. This article was written before that decision, but the information is still accurate. We are tracking this issue on an ongoing basis. For updated information on this topic, please contact Lauren Doroghazi (ldoroghazi@multistate.us).
Click here for a downloadable PDF of this article.
In May, Politico published a leaked draft opinion by U.S. Supreme Court Justice Alito that would overturn the 1973 decision in Roe v. Wade. Chief Justice Roberts confirmed the authenticity of the draft opinion but also emphasized that “it does not represent a decision by the Court or the final position of any member on the issues in the case.”
If the final decision the Court is expected to announce soon is similar to Justice Alito’s draft, this will shift many policy decisions on reproductive issues to the state level. As with many issues, polling on abortion access differs at the national level and the individual state level, which means we can expect different policy responses across the country.
Once released, the Court’s final decision will no doubt have a major impact on the policy priorities of state lawmakers for the remainder of this year and beyond. Abortion access will be an issue on the campaign trail of every major state election this November, and we expect additional special legislative sessions to be called this summer. What might the broader post-Roe landscape look like in the states? To answer this question, we can look at the political makeup of state governments.
Currently, 24 states either have abortion restrictions already on the books (although unenforceable while Roe is in effect) or have enacted “trigger laws” designed to automatically restrict abortion access if Roe is overturned. Another 16 states and D.C. have laws that protect access to abortions. That leaves 10 states without current laws that significantly restrict or protect abortion access in a post-Roe era (grey on the map below).
Expected State Activity
The best way to predict the future of abortion access (the map above) is to examine the partisan control of states (the map below).
This map illustrates all the current state trifectas, where the same political party controls both legislative chambers and the governor’s mansion. There are four states where Republicans hold a trifecta and there are no significant restrictions on abortion access: Indiana, Montana, Nebraska, and New Hampshire. In New Hampshire, Governor Sununu (R) announced in early May, “I’m a pro-choice governor and as long as I’m governor, we’re going to remain a pro-choice state.” Montana is bound by a 1999 state supreme court decision protecting abortion access in the state, which will complicate efforts by pro-life lawmakers to enact enforceable restrictions.
In Nebraska and Indiana, we should expect special legislative sessions later this year to address the issue. Indiana Governor Holcomb quickly announced that a special session to address abortion is “on the table” if Roe is overturned. And Nebraska is poised to call a special session, although not until the official decision from SCOTUS is released.
Finally, although Kansas has a Democratic governor, Republicans hold a supermajority in both chambers of the legislature, which could allow them to overturn a gubernatorial veto. Although a 2019 state supreme court decision found that the state constituion protects a woman's right to an abortion, Kansas lawmakers have already referred a ballot measure to the voters to overturn this decision.
On August 2, Kansas voters will decide whether to amend the state constitution to state that nothing within the constitution creates a right to abortion or government funding for abortion and giving state legislature the authority to pass laws regarding abortion.
Of course, it’s an election year so we should also take a look toward 2023. And although the election is a long five months away, current polling suggests that the GOP is poised to pick up additional trifectas in November. Republican gubernatorial candidates could edge out victories in Kansas and Pennsylvania, handing the GOP new trifectas in states that currently have no abortion restrictions in place. Another state to watch is Minnesota, where Democrats could potentially lose the governor’s mansion and the house chamber, ultimately delivering a new Republican trifecta.
Corporate Perspective
How should businesses plan to respond to future state action on abortion legislation? Any decision to speak out on reproductive rights — or any significant social issue — must take into account three key stakeholder groups in addition to lawmakers: shareholders, employees, and consumers. Public opinion on reproductive rights is variable, and thus a successful engagement strategy for business leaders will require a fulsome understanding of the ultimate goal of speaking out on the issue. What is the business attempting to accomplish? Is the goal to communicate the company’s values to stakeholders? Or to influence public opinion and affect public policy? Regardless of the position a business might take, its leaders must understand their employees’ perspectives as well as anticipate potential backlash from lawmakers or consumers for speaking out or acting on this issue, regardless of the position taken.
Employee expectations is perhaps the most important factor for business leaders to consider with regard to the company’s position on reproductive rights. Employees have often been the most vocal group encouraging corporate participation in social debates, and competition for talent is fierce.
According to the Edelman Trust Barometer, employers are the most trusted group in the United States and hold a 74% trust rating (compared to 39% for government). As a result, employees have the expectation that their employers will weigh in on policies that may affect them. Before taking action, though, corporate leaders must understand how the majority of their employees expect them to respond. In some cases, a majority of employees may hold strong views and will react negatively if employers remain silent or issue statements without an action attached; however, there may be a vocal minority agitating for their employers to engage while a majority of the workforce remain agnostic about a corporate response.
One way that corporations have decided to enter the debate surrounding reproductive rights is to provide abortion care as a benefit for their employees, including compensating employees for any necessary travel and medical costs to obtain abortions out of state. Other companies have decided to pay for employee relocation costs if states enact restrictive abortion laws. But most companies have concluded that the best thing to do is remain silent for now.
Taking a proactive position is not without risks. According to a recent study from The Harris Poll, while 35% of adults surveyed stated that they are more likely to support a brand that supports abortion rights, 28% of respondents said they are more likely to support a brand that opposes abortion rights. Like employees, brands must understand their consumer’s perspective.
Finally, corporations must consider how policymakers may respond to their positions and actions on reproductive rights, particularly as some Republican lawmakers that have long been pro-business have shown a willingness to legislate on the employer-employee relationship recently (e.g., employer vaccination mandates). This shift has coincided with conservatives’ growing distaste for “woke capitalism” and a concomitant fall in Republicans’ trust in businesses to 48% in 2022, down 12 points from a year prior. For example, a group of lawmakers in Texas have stated that they’ll seek to ban companies from doing business in the state that provide healthcare benefits that cover abortions, and U.S. Senator Marco Rubio (R-FL) has introduced legislation to prohibit employers from deducting business expenses related to abortion travel costs. In addition to legislation setting abortion policy, expect state lawmakers to seek to punish corporate activity that isn’t aligned with their preferred policies.
