New Texas Abortion Law Poses New Problems for Legal and HR Departments, and Not Just in Texas

As if the COVID-19 crisis wasn’t causing enough migraines for corporate HR departments all over the country, here comes Texas with a new abortion law that throws a massive monkey wrench into the works. The new law has already sparked attention far beyond the borders of Texas, because it potentially covers every adult in the U.S., whether a Texas resident or not.

Another day, another massive headache for HR departments

The new law, Senate Bill 8, authorizes private citizens to bring civil action related to women who seek abortions in Texas after a pregnancy passes the six-week mark.

That’s a sneaky way to gut the protections described by the 1973 Roe v. Wade decision of the U.S. Supreme Court. That famous decision prohibits government entities from establishing blanket prohibitions on abortion up to the age of viability, generally considered to be 20 weeks from conception. Though many states have chipped away at those protections over the years, Senate Bill 8 takes it to another level by entitling individuals to take action on abortions after just six weeks, even if they have no personal stake in the procedure.

To be clear, the new law does not entitle any complete stranger to sue a woman who is seeking an abortion. However, a civil lawsuit could easily render a private decision into a public nightmare, exposing women to abuse from their community, including spouses and parents among other relationships.

The new law is apparently aimed mainly at abortion clinics and those who work in them. Of more general concern is the potential impact of the law on anyone else who is suspected of aiding in an abortion, including anyone in whom a woman confides.

That opens up some interesting questions for corporate HR departments, both in and out of Texas. The law apparently provides for Texas residents to act on anonymous tips, raising the possibility that out-of-state tipsters can get the ball rolling on abortion lawsuits in Texas.

For starters, corporations will have to determine if their wellness programs raise the risk of an abortion lawsuit under the new law. To be on the safe side, they may need their female employees in Texas to sign a certificate pledging not to discuss their pregnancy status with their wellness program or, for that matter, anyone else in the company.

Corporations will also have to decide how to handle the situation if one of their employees brings an abortion lawsuit against someone in Texas, especially if the lawsuit is brought against another one of their own employees. If the lawsuit “snitching” problem gets out of hand it could have a significant, negative impact on team-building efforts and employee well-being.

In addition, out-of-state employers will also have to develop with new policies dealing with the right of female employees to turn down assignments in Texas. After all, pregnancy is a high-risk health condition. The option of out-of-state travel to an abortion clinic sounds doable on paper, but it can layer additional health risks on pregnant women, pose new financial stresses, raise difficulties in dropping family or work responsibilities for extended periods, and expose women who would otherwise be able to keep their decision to abort a private one.

All of this is over and above the headaches facing employers with a corporate footprint in Texas. They are now faced with navigating a minefield of new HR concerns and they will have to find ways to reassure their employees — including top executives — that they and their families are at no real risk of being sued under the new law.

In addition, recruiters seeking to tempt top talent to Texas will have to explain how prospective employees can expect to be protected against vigilante-style abortion lawsuits.

Corporate America responds to new Texas abortion law

The potential for a strong negative impact on recruiting has already surfaced in a quick poll commissioned by Tara Health Foundation, but some companies with a footprint in Texas have not waited for public opinion to come around.

Lyft and Uber, for example, immediately recognized that they could lose business in Texas, as the new law potentially exposes anyone who drives a woman to an abortion clinic. Both firms have offered to pay legal costs for drivers facing lawsuits, but that is weak tea compared to the shaming some drivers may face from their communities. Drivers may seek other, less risky gig work elsewhere rather than face the inconvenience of a lawsuit or blowback from friends and relatives.

The tech industry is also on high alert. Ad Age has reported that “advertising and media leaders, especially women and women of color, are calling for action,” with some advocating for a boycott of SXSW and other high-profile events in Texas.

When boycotts are not the point

Boycotts can be effective in changing corporate behavior. In some states, boycotts have also been a factor in changing the balance of political power. However, that impact remains to be seen in Texas, where the political landscape has been hardening in favor of Republican office holders over the years.

Seen through the lens of political power, SB 8 is an attempt to solidify GOP control by driving Democratic-leaning voters out of the state.

The last election cycle showed that the Republican party is losing female votes in formerly “red” suburban strongholds. Rather than adopt policies that attract more suburban women, SB 8 represents a doubling-down on policies that affront Democratic-leaning women. In other words, driving educated, financially mobile women and other Democratic-leaning voters out of state is a feature, not a bug, of SB 8.

If there are any doubts, take a look at the concurrent passage of new voter restrictions by the Republican-controlled Texas legislature, signed into law by Republican Governor Greg Abbott.

The SB 8 end game

Whether Democratic-leaning voters are driven out-of-state, discouraged from moving into the state, or prevented from voting, the result is the same. In Texas, the end game is to tilt the entire political table in favor of Republican office seekers.

Recourse in the courts is still an option, and as of this writing a judge has temporarily blocked Texas from administering SB 8 as it applies to Planned Parenthood.

However, the damage has been done. Other states are already seeking to use SB 8 as a model bill. If the trend continues, the long-term impact will be to further concentrate Democratic-leaning voters in a shrinking number of states, providing other states with a permanent advantage in the Congress as well as the Electoral College.

In effect, the twin trends of voters suppression and abortion scare tactics will accomplish by law what the January 6 insurrection failed to accomplish by force: permanent one-party rule in the U.S.

That may seem somewhat alarmist, but political observers have been ringing the alarm for several years, urging corporate leaders to step up and use their financial muscle and public influence in support of office seekers who respect basic democratic principles including the right to vote.

The field of action is beginning to narrow into the two hot-potato actions of either abolishing the U.S. Senate filibuster or adding new Democratic-appointed judges to the U.S. Supreme Court — or both. In the coming months, corporate leaders who have been reluctant to pick up those torches may not have any other choice.

Image credit: Mark Thomas/Pixabay