Some Companies Dig in for the Long Haul on Reproductive Rights, While Those on the Sidelines Face Risk

When Texas passed a strict new abortion law in 2021, some business leaders simply passed the buck. They said they'd pay to shuttle their Texas employees off to other states for medical care or permanent relocation, rather than taking any definitive stance for or against the legislation. Three years later, conservatives have tightened their grip on reproductive healthcare policies, potentially impacting women, girls and other pregnancy-capable people in every state, not just the “red” ones. Business leaders who were hoping to stay above the fray will soon have nowhere to go unless they realize that the buck stops right where they are.

Fill that communications gap

Despite the U.S. Supreme Court's Dobbs v. Jackson Women’s Health decision that ended federal protections for abortion in the U.S., some companies continue to protect equal access to health care through their employee health plans, as indicated by a survey of plan offerings related to abortion services in 2023 conducted by the firm KFF. The survey focused on large firms of 200 or more employees.

However, the survey strongly suggests that some large firms need to do a much better job of communicating about their abortion coverage. Or at least they need to clarify who is responsible for communicating about their abortion coverage. 

KFF’s surveyors requested to speak with a person most familiar with the plans, generally meaning a human resources or benefits manager. Nevertheless, almost 40 percent of the persons who were designated to respond to the firm’s questions reported that they were not familiar with their firm’s abortion coverage.

Presumably, a prospective employee seeking information about abortion coverage would keep digging until they found the answer. Nevertheless, the survey indicates that some companies may be missing an opportunity to communicate about their support for gender equality as it relates to reproductive health care.

Opportunities for leadership on reproductive rights: Size and location

The 40 percent of firms without information represent a knowledge gap in the survey. But the top-line result is still somewhat reassuring to workers seeking plans that cover abortion services.

KFF found that 32 percent of firms with information about their plans reported that they still offer abortion coverage in “most or all circumstances.” Another 18 percent provide coverage but restrict it to cases of rape, incest, danger to health or life, or other limited circumstances. Only 10 percent reported that they provide no coverage at all.

The size of the company makes a difference. Forty-three percent of firms with 5,000 or more employees reported covering abortions in all or most circumstances, beating the average of 32 percent by a wide margin, according to the survey.

That finding suggests an opportunity for larger firms to collaborate with each other on support for reproductive rights and equal access to health care.

Firms headquartered in the Northeast also appear to have a stronger platform for collaboration. In the Northeast, 56 percent of firms reported covering abortions in all or most cases, presenting a sharp contrast with the national average of 32 percent. 

The other region to beat the national average was the West, at 44 percent. In contrast, firms headquartered in the Midwest and South appear to be ignoring the impact that access to abortion services could have on employee attraction and retention. Only 20 percent of respondents in the Midwest and 18 percent in the South reported covering abortion in all or most cases.

“Although where a firm is headquartered is not necessarily where its largest plan is offered, these findings do largely mirror trends related to abortion rights and abortion coverage laws in states in these regions,” according to KFF.

The shrinking windows of opportunity

When Texas moved to dramatically restrict access to abortion in 2021, some businesses relied on other states to fill in the gaps of service for their employees. That window began to shrink just one year later when the conservative-led U.S. Supreme Court decided the Dobbs v. Jackson case. The majority argued that states should be empowered to restrict abortion if they choose. While many states did not take up the offer, others did.

As of last year, 13 states all but banned abortion services, according to information compiled by the nonprofit organization Guttmacher Institute.

“One year after the U.S. Supreme Court’s decision in Dobbs v. Jackson Women’s Health overturned Roe v. Wade, the status of abortion rights in many states is dismal and complex legal questions continue to create chaos and confusion,” according to the Institute.

Guttmacher also takes note of some “bright spots.” However, other red flags have emerged elsewhere in the reproductive health care field.

For example, in 2023 the Joe Biden administration permitted pharmacies to dispense the widely used abortion medication mifepristone. Last week CVS and Walgreens both announced they would begin dispensing it, though only in states where abortion is still permitted.

Limited as that window is, it may soon slam shut. Last year a federal judge ruled that mifepristone should be pulled from the market. On appeal, the case will be heard by the U.S. Supreme Court. Oral arguments are scheduled for March 26, and a decision is expected this summer.

Another red flag was raised on February 16 when the Supreme Court of Alabama ruled that embryos frozen through the course of in vitro fertilization (IVF) are people under the state’s Wrongful Death of a Minor Act, a law passed in 1872. 

The ruling created an uproar across the political spectrum. Pregnancy clinics in Alabama almost immediately suspended operations, citing concerns over legal consequences. The Alabama legislature scrambled to control the damage, but legal experts have already raised concerns that the forthcoming legislative fix will not reassure IVF practitioners.

So far, Louisiana is the only other state to restrict the disposal of IVF embryos. Clinics there have continued to operate under a loophole that permits the transportation of embryos to other states, but those opportunities are now at risk. Reproductive rights advocates have raised concerns that “fetal personhood” bills threaten IVF services in 14 other states.

A solid step in the right direction

Against this backdrop, CVS and Walgreens took advantage of a new opportunity to stand up for reproductive rights. Both companies announced they will sell the daily contraceptive medication Opill under its new status as an over-the-counter product approved by the U.S. Food and Drug Administration.

CVS will begin stocking Opill in April, and it has already taken steps to ensure customer privacy. The company has posted information about Opill on its website. Customers can assess the contraceptive without the need for an in-store consultation, though CVS advises that its healthcare staff is also available to assist on request.

Out of additional privacy considerations — including the risk of confrontation with judgmental staff or customers — CVS also reportedly plans to implement same-day delivery service for Opill. Customers can also pay online and pick up their orders in person. 

Walgreens’ approach is also notable. The company took an unapologetic, enthusiastic position on birth control. “When used as directed, Opill is 98 percent effective at preventing unplanned pregnancies,” Walgreens states on its website. “The best part? You don't need a doctor's appointment or a prescription before you begin using it, so it's a great option for those without health insurance or frequent access to medical services. No hassle, no worries.” 

That remains to be seen. The sale of a new contraceptive is a matter of routine in many U.S. states, but Opill may kick up a firestorm of controversy in states where fetal personhood advocates have already politicized health and wellness decisions.

In addition, Republicans in Congress are already preparing federal legislation in support of fetal personhood, such as the proposed Life at Conception Act, which will bring down the curtain on access to birth control as well as abortion and IVF.

Business leaders who still think it’s possible to pass the buck on reproductive rights are only deluding themselves and their employees.