How Leading U.S. Businesses Can Find Their Voice on Abortion Rights

As one of the most common surgical procedures performed in the United States, abortion is a cornerstone of modern medicine and women’s reproductive health. However, abortion is also a hot-button political issue in the U.S. Business leaders who support the right to safe, legal abortion risk stepping into a minefield when they speak out. But the opportunity to speak up and unify around common ground exists, and the dating app Bumble is among those showing the way.

The big picture

In the 1973 Roe v. Wade decision of the U.S. Supreme Court, abortion rights are described in terms of the Constitutional right to privacy under the 14th Amendment. However, Roe left ample room for states to establish limitations on abortion services, and it was ultimately overturned by the 2022 Dobbs vs. Jackson Women’s Health decision.

In the resulting patchwork of state abortion laws, women in abortion-restricting states have been able to travel out of state for an abortion, if they have the means to do so. 

The availability of out-of-state care has also influenced the corporate response to new abortion bans, as recently demonstrated in Texas by corporate behavior after Senate Bill 8, a strict abortion law, was enacted in 2021. Bumble, Salesforce and dozens of other leading corporations responded by publicly pledging financial assistance for Texas employees in need of out-of-state abortions. Some also offered to relocate employees to other states.

However, that response failed to take the big picture into account. Senate Bill 8 did not simply impact employees in Texas. Along with two other state laws restricting abortion access, Senate Bill 8 appears to have dampened the enthusiasm for out-of-state workers to take up residence in Texas, and that makes abortion a bottom-line issue for businesses. 

Texas women ask for clarity

One key shortcoming of the travel assistance pledge is its failure to address the issue of emergency abortion care. Scheduling an out-of-state abortion may be inconvenient and costly, but in many cases of unplanned pregnancy it can be planned well in advance. Accessing emergency care to avoid serious medical complications, permanent injury, or death is a different matter entirely.

Access to emergency care is also a matter that impacts all pregnancy-capable people. Despite the culture of cuteness surrounding pregnancy, miscarriage is a common experience, and studies show that abortion bans increase maternal mortality.  

The underlying fault with the offer of out-of-state travel assistance was underscored by the 5th Circuit Court of Appeals last week when it ruled that hospitals in Texas are not required to provide abortion emergency care services. 

That widely reported decision has brought renewed attention to women in Texas who have suffered needlessly because they were denied timely care during their pregnancies.

The 5th Circuit decision also focused more attention on a lawsuit brought by 20 women and two obstetrician-gynecologists who claim they have been harmed by the Texas abortion laws. The lawsuit, Zurawski v. State of Texas, demands that state law clarifies what constitutes a “medical emergency.” 

The group is represented by the Center for Reproductive Rights, which filed the lawsuit in March of last year. “While the laws contain an exception for the life and health of the pregnant person, Texas’s hostile abortion landscape has made physicians afraid to rely on the exception,” the Center for Reproductive Rights explains. “These extreme bans criminalizing abortion have stoked fear and confusion among pregnant people and doctors throughout the state.”

Bumble finds its voice on abortion rights

The stoking of fear and confusion is also the focus of an amicus brief in support of the Zurawski plaintiffs. Latin for "friend of the court," amicus curiae briefs are filed by groups or individuals who are not part of a legal case but offer assistance to the court by way of insight or expertise.  Authored by the law firm Reed Smith, the brief was filed on November 20, 2023, with Bumble on board as the first company to sign on.

“Texas’s confusing medical exceptions increase business costs, drive away talent, and threaten workforce diversity and well-being,” Whitney Wolfe Herd, Bumble’s founder and CEO, said in a press statement. "We must unequivocally support equal rights for our employees and customers to make their own reproductive choices.”

Reed Smith partner Sarah Cummings Stewart, who is leading the brief, added: “Women and businesses are literally fleeing the state, and others are staying far away from these cruel and unjust laws.”

The brief presents evidence backing up these claims, including data showing that while the overall population of Texas is growing, an “increasing number of young, educated professionals are either not considering [moving to Texas] or are leaving the state in search of better opportunities and more inclusive environments.”

The brief also describes a survey in which “66 percent of respondents who did not live in Texas said S.B. 8 would discourage them from taking a job there, [and] 63 percent said they would not even apply for a job in a state that banned reproductive health care.”

As described in the brief, Texas law fails to provide businesses with reliable guidance for prospective employees regarding their access to medical intervention if needed. In effect, it is a risk management issue.

“At present, the ability of businesses to advise on that availability issue is hamstrung by the ambiguity in the various statutes and the uncertainty in their application,” the brief states. “Delivering clarity on that issue will let individuals and companies know one thing for certain about the availability of reproductive care.”

Next steps for businesses

By focusing on ambiguity in the law, the brief does not make a moral judgement about abortion, much less demand for the abortion laws to be nullified. It simply asks for the law to clarify the extent of risk that women and other pregnancy-capable people will face when choosing to live in Texas.

“Even a small step on this life-defining issue is important, because it will help all those affected — individuals and businesses alike — in making evaluations pivotal to their futures,” the brief concludes.

Bumble is not alone in seizing the opportunity to support clarity in the law. About 50 other businesses joined the brief. However, aside from Bumble none of them are household names.

The brief also names dozens of high-profile businesses that have publicly offered out-of-state abortion assistance for their Texas employees, including Microsoft, Levi-Strauss, Amazon, Bank of America and many more. Those offers are ringing hollow in the face of mounting evidence that employee retention and recruitment are suffering.  

The Texas Supreme Court heard oral arguments in Zurawski v. Texas on November 28, but the case is still open and it’s not too late for other leading corporations to join Bumble and raise their voices in support of abortion rights in Texas.