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Welcome to FNEI Insights, the FiscalNote Executive Institute’s monthly thought leadership blog where we interview executives about top issues affecting companies, including ESG and sustainability; diversity, equity, inclusion, belonging, and accessibility; technological innovation; global risk, and more. This month, to learn more about how the recent change in U.S. abortion law will affect employers and workers, we spoke with Brian Kropp (Group Vice President and Chief of HR Research at Gartner), Tolu Lawrence (Managing Director at JUST Capital), and Amie Stepanovich (Vice President of US Policy at Future of Privacy Forum) for their thoughts on what companies should think about with the reversal of Roe v. Wade. 

In a 5-4 decision announced on June 24, the U.S. Supreme Court voted to overturn Roe v. Wade, the 1973 case that established a constitutional right to abortion. The ruling returns abortion policy to certain states. The ruling also creates significant uncertainty for companies across the country, as they seek to support employees without running afoul of potentially conflicting state laws.

Impact on HR Policy

The administration of human resources, for example, is likely to become a lot more complicated in the months ahead. Part of the reason why, says Brian Kropp, Group Vice President and Chief of HR Research at research firm Gartner, is because polls consistently show that the United States, like the Supreme Court itself, remains fiercely divided on abortion. “Issues like discrimination or racism, it’s easier to identify what are the right positions to take. This one [abortion] is an environment where there’s very deeply held moral, religious, and philosophical beliefs that make it incredibly difficult [for firms] to manage,” he says.

The result, explains Kropp, is that while some areas of employer-employee interactions will remain unchanged — such as employees’ right to privacy, under federal HIPAA regulations, regarding issues like workers’ medical histories and treatments — new grey areas will also emerge. “A lot of employees may now feel uncomfortable saying why they’re taking medical leave. If their manager has a strong, pro-life viewpoint, will employees be forced to lie to the manager to avoid potentially adverse career implications?”

The rapid spread of remote work in recent years will create further complexities for HR executives. “Companies are going to have to have a much better understanding of what their employees are doing in different states, in addition to possibly [employees’] spouses and older children who are still on their health insurance. Depending on where they all live, do they still get access to [company-provided, reproductive-health] services? Companies are inventing a lot of these policies and approaches in the moment, because everything has happened so quickly,” Kropp adds.

For example, while HIPAA privacy regulations cover medical procedures, the extent to which they cover interstate travel is not always clear. “Employers are not covered under HIPAA because they’re not a health-care entity. What that means is that if an employer is reimbursing travel expenses — hotel, plane, whatever it might be — access to it [HIPAA’s protections] might not be covered,” Kropp says. 

This uncertainty means that companies must proactively monitor the changing legal landscape more than ever. “What you’ll have to do is not just set it [HIPAA compliance] up once in a way that works, but be constantly vigilant about how these [abortion] laws are changing. If you want to protect the privacy of people who are getting an abortion, then make sure that the way you’re providing the reimbursement mechanism is aligned in a way that actually protects their privacy,” he adds.

Impact on Companies Taking a Stand

In an age where companies are increasingly expected to take public positions on contentious social issues, remaining silent on Roe’s reversal has proven as risky as taking a public stand for some companies, notes Tolu Lawrence, Managing Director of Programs and Partnerships at JUST Capital, which tracks and advances corporate performance on stakeholder issues. Although the numbers fluctuate across political lines, more and more, the public is looking for corporate leadership on issues above and beyond business operations.

JUST Capital’s annual America’s Views on Business survey that 81 percent of liberals, 68 percent of moderates, and 42 percent of conservative respondents believe that CEOs have a responsibility to take a stand on important societal issues. Among those who responded in favor, 61 percent said this was true no matter what the issue, and 39 percent said this was true only if the issues are related to their business.

Yet, because taking a stand comes with its own set of risks, experts recommend that companies should nevertheless walk through a situational assessment to avoid knee-jerk reactions. The key is to take an approach that aligns with their business and is informed by their stakeholders. “Good practice can look different companies” says Lawrence. “But it [your public stance] should be authentic, informed by organizational values, and you need to be able to stand behind it.”

Regardless of the position they ultimately take — either internally or publicly — companies would do well to communicate their views with an awareness of the unprecedented nature of this moment and the potential impact of the restriction of a civil right among their stakeholders. “The repeal of Roe v. Wade opened the door for about 26 states, covering about 40 percent of women in the U.S., in addition to other individuals capable of birth, to potentially ban abortion,” notes Lawrence. “For companies, this is new ground.”

Impact on Data Privacy

Today, the ubiquitous use of smart phones — with apps tracking everything from individuals’ locations to their menstrual cycles — means that data privacy should be another big issue of concern for companies, as well as for employees. Indeed, the risk that police and prosecutors may eventually seek to use such data to enforce local abortion laws is high, predicts Amie Stepanovich, Vice President of U.S. Policy at the Future of Privacy Forum, a think tank. 

Individuals can do certain things to protect themselves, including “only using apps or services from companies they trust, turning off permissions to gather information, when possible… [and] calling their elected representatives to pass enhanced data-privacy laws,” says Stepanovich.

Meanwhile, companies that may be asked by law enforcement to share customers’ data will face unenviable tradeoffs. On the one hand, “you often hear people at tech companies saying that they operate on their users’ trust. People tend to stop using services, turn off programs, if they don’t trust the company behind that service,” Stepanovich says. On the other hand, “Challenging these [law-enforcement] requests can be costly, especially for smaller firms. It takes a lot of lawyers a lot of hours [to pursue such challenges].”

The upshot is that “you don’t want to lose your customers’ trust. But you also need to figure out how much you can invest in a legal battle,” she says. “Companies are going to have to make those extremely difficult decisions.”

As the post-Roe vs. Wade world unfolds, companies would also be wise to think beyond their own immediate legal, PR, and financial interests, argues Stepanovich. “It’s not enough to only think from your own perspective. You have to be thinking from the perspective of society’s more vulnerable, marginalized individuals as well.”

Watch FNEI’s full interviews with Brian Kropp, Tolu Lawrence, and Amie Stepanovich.