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Supreme Uncertainty

With 13 SCOTUS rulings to go and the Dobbs decision still outstanding, we’re devoting all of Capital in Context today to helping you understand the existing conversation, how companies are reacting and what comes next. And if you missed our previous guidance on how organizations should prepare to respond to the ruling, read it here and here.

Supreme Uncertainty

The expected Supreme Court decision on abortion would have complex legal, political, operational and reputational implications for companies, complicated by the wide range of policies across the 28 states that already have or plan to ban or tightly restrict abortions. We forecast a period of upheaval, as states adopt diverse – and opposing – approaches to reproductive healthcare access. 

Although the final opinion is likely to differ from Justice Samuel Alito’s leaked draft, the most likely outcome remains that the Court will overturn Roe v. Wade and return to the states the power to regulate abortion— as it was almost 50 years ago. 

At this point, there are currently three categories of state legislation expected:

  • Existing laws or new bills to restrict abortion, as well as moves in some local communities to do the opposite and decriminalize it. Several states have already enacted "trigger laws" that would automatically impose abortion restrictions pending Roe’s fall. There also may be additional legislation at the federal level. 

  • Bills restricting the sale of pharmaceuticals used in medical abortions.

  • Bills that would criminalize actions by corporate entities to allow women to travel to receive abortion-related services.

SCOTUS could stop short of overturning Roe but still render it largely moot (some Court watchers think Chief Justice Roberts may have circulated a rival opinion less extreme than Alito’s). The pace of decisions is markedly slower than usual this year, leading to speculation that the justices are more divided and less collegial than in the past. 

The legal and business landscape on this issue will continue to shift after the decision, especially as the full consequences of the ruling become clear. The shifting mosaic of different rules and standards may not fully resolve itself for months or even years.

Regardless of the high court’s ruling, advocates on both sides of the issue will engage in lengthy litigation that will likely establish a further patchwork of legal standards. 

By the Numbers

The Company Line

Imminent high-profile rulings on abortion, gun rights and religious expression are likely to deepen cultural and political divides. Although these issues are rarely central to a company’s business, employees, customers and government interlocutors may pressure a company to respond. 

Views are complicated, but polling consistently shows most in this country do not want Roe to be overturned and are uneasy with the government making individual healthcare decisions. The most engaged voters are divided.

Here’s what we’ve seen from companies in response to Texas SB8 and the leaked draft opinion in Dobbs:

  • Companies have started updating or emphasizing benefits for their employees to ensure access to care. Since May 3, over 20 companies including Amazon, Microsoft and Starbucks have announced or reiterated their health care policies would cover travel to other states for abortion access and other reproductive care. They join companies like Uber, Lyft and Apple who made similar commitments following the May 2021 enactment of Texas SB8.

  • While most of corporate America has yet to acknowledge the issue publicly, some pushback is emerging. As of this week, over 60 companies like Lyft, Levi Strauss and Ben & Jerry’s signed on to a statement from "Don’t Ban Equality" – a coalition created in 2019 and supported by the ACLU, Planned Parenthood and the Center for Reproductive Rights – stating that reversing Roe v. Wade would be against their company values.

  • Companies are experiencing growing scrutiny in the media over their willingness to take a position. Media outlets have reported on corporate America’s relative silence on abortion in contrast to their outspoken stances on issues such as racial justice, voting rights and marriage equality. Fast Company and Yahoo Finance have written about their efforts to contact corporate leaders to find out their positions on abortion and reported few have been willing to comment. Yahoo Finance particularly focused on companies with women CEOs, noting few were willing to speak up. The New York Times has suggested corporate America may be forced to make a statement due to pressure from employees, especially in a tight labor market.

  • Companies are increasingly facing pressure from shareholders to protect access to abortion. Walmart, Lowe’s and TJX have all faced votes on proxy proposals aimed at ensuring the companies enact internal policies that give workers the ability to obtain abortions. While the votes all failed, a significant minority of TJX shareholders (30.2%) and Lowe’s shareholders (32%) voted in favor.

The Digital Divide

Our Research and Insights team analyzed recent tweets to take the public temperature on the upcoming Dobbs ruling. Here’s what they found:

  • Twitter conversation peaked with the Supreme Court draft leak, but recent engagement has been limited as other issues compete for attention.

  • Conversation has been most active among right-leaning users over the past week as people share accounts of violent protests.

  • As expected, the conversation is divisive. Narratives driven by the right focus on reports of violent protesters:

    • Safety of Supreme Court Justices: Users on the right share their concerns about the justices’ safety – especially Brett Kavanaugh and Amy Coney Barrett. People share stories of disruptive protests outside their homes, threats of violence against Kavanaugh and protesters showing up to Barrett’s church. 

  • Attacks on pro-life centers: Conservative users critcize the left based on reports of attacks on pro-life women’s health centers. Rep. Marjorie Taylor Greene consistently shares information about these centers and expresses frustration they aren’t given the same protection as abortion centers.

  • Narratives driven by the left are more advocacy-oriented, with users calling for the protection of reproductive rights and other freedoms the Court could overturn next:

  • Dismantling Rights: Users on the left, including Vice President Kamala Harris, continue to share their concerns that overturning Roe v. Wade could lead to other freedoms being overturned – especially same-sex marriage and interracial marriage.

  • Executive Order: News outlets and users share reports President Biden could issue an executive order to protect access to an abortion if the Court overturns Roe v. Wade.

  • Local Laws: Liberal voters urge state governments to enact laws quickly to protect people’s right to an abortion in their state. Some local lawmakers share promises to continue fighting for abortion access at the local level even if the Court overturns Roe v. Wade.

  • Gun Laws: Users on the left are highly critical of Republicans who talk about the value of life and tout pro-life values but refuse to enact any gun laws to prevent future school shootings.

June 21, 2022
By Nedra Pickler and Irene Moskowitz
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