LM Extras Aug 2, 2022

Law Firms Negotiate a Shifting HR Terrain

The Supreme Court has overturned Roe v. Wade. Suddenly, the HR job is a lot tougher — and murkier.

With the constitutional right to abortion eliminated after nearly 50 years of protection, state legislatures now control the legalities of pregnancy terminations. And those legislatures vary widely in their proclivities. 

Phillip M. Perry

“We are dealing with an incredible red and blue checkerboard across the country,” says Robin Fretwell Wilson, a law professor at the University of Illinois, and an expert on health care law. According to a recent report in The Financial Times, 15 “red” states are expected to enforce current laws that ban abortion partially or completely. On the other hand, 21 “blue” states are protecting free choice. And the remaining ones? Their laws are unsettled.

In this variegated legal terrain, law firms in red states must answer a critical question: Will they offer to pay the transportation and medical costs of staff members who travel for their healthcare needs? Policies must be based on staff attitudes toward abortion — and those can be a mixed bag.

“We’re very fractured as a country,” says Wilson. “Employers who want to support their employees will have to decide which ones they mean: Those who want or need abortions and can’t get them in their state? Or those who are prolife and want their employers to stand for that?”

The HR dilemma is made more difficult by the often-nuanced quality of support for free choice. “People can land on different combinations of flexibility that they support in good conscience,” says Wilson. “There’s a lot of complexity there.” Some people support all abortions, while others only in cases of rape or incest — or when the mother’s health or life is at risk. “If a company says it will pay for an employee’s travel for abortion, the question will become: What kind of abortion?”

Even if all staff members support a woman’s right to choose, noted Wilson, an employer’s decision to support their travel for health care is not necessarily the end of the story. “Some states are saying ‘It’s a crime to have an abortion in this state, and if you aid and abet somebody having it elsewhere, that’s a crime too,’” said Wilson. “We have a kind of weird public policy arms race going on, where the blue states are shielding their public policy and the red states are projecting theirs.”

As jurisdictions battle to protect their legal turf, the extent of employer liability is still unsettled. Sidley Austin might be a harbinger of what’s to come, for firms that do choose to weigh in on the debate, as they are already being threatened with legislative action in Texas.

“Whether red states can actually extend their laws beyond their borders, no one has any idea,” says Wilson. “So I don't think anybody knows how it’s going to end. I think we’re at an ‘all bets are off’ point right now.” But even if it turns out that state laws are bound by jurisdiction, employers may still risk civil liability in the eight states offering bounties to citizens who report any aiding and abetting of pregnancy terminations. “It’s a whole ‘Brave New World’ around abortions,” concludes Wilson.  

As if solving the abortion conundrum was not tough enough, many states are still working out their laws at the granular level. Some are deciding whether to ban the practice outright, or allow exceptions for rape, incest or the health of the mother. And how about exceptions for children, such as a recent 10-year-old Ohio sexual assault victim?

Whatever the final resolution of these state laws, it’s certain that abortion has become the latest entry in a growing array of social issues for which law firms must create workable policies. “For the longest time employers were able to stay out of the culture wars,” says Wilson. “It’s only been in the last decade, really, that we’ve drug them into issues such as same-sex marriage and LGBT and trans rights. It’s stunning, in a sense, how fast it all has happened.” Unfortunately, she added, straight up-and-down policies are elusive. “These issues are very, very complex. They don’t lend themselves to caricatured positions.”