Cause and Effect

The Supreme Court’s just-completed term is one of the most consequential in memory – for the importance of the rulings and for changes that will affect how it operates and is perceived by Americans going forward.

Here’s what it means for businesses: 

• The issues addressed during this SCOTUS term are likely to become increasingly politicized as the midterm elections approach.

• The state abortion fight is changing daily, with some reproductive restrictions in effect and a few blocked. It’s hard for organizations, let alone individuals, to track what’s legal where. Innumerable legal challenges will complicate the landscape further.

• Companies’ track records on a range of issues – political giving, worker treatment and rights, corporate charitable match offerings – will be closely scrutinized for perceived signs of hypocrisy. As abortion regulation moves to the states, stakeholders will likely look at political giving beyond federal-level PAC donations to state donations as well. Companies who announced employee abortion travel benefits and previously donated to the Republican Attorneys General Association— a key backer of the challenge to Roe vs. Wade— have been criticized.

• Expect increased focus on the potential implications of the court’s Dobbs decision beyond abortion rights. Advocacy groups will band together on strategies and actions to safeguard other privacy-related protections—such as LGBTQIA+ rights and access to contraception—including from companies.

• Data and personal privacy is a next frontier of this issue, especially for consumer-facing brands, technology companies and retailers. Consumers are increasingly concerned officials could seek their personal data – from private health data shared with apps to past purchases of contraceptive, pregnancy and menstrual products. Companies with sight into any of these forms of data will likely be asked to clarify their policies, and any company with relevant employee benefits policies may be asked about their willingness to comply with government information requests or subpoenas.

• Corporate and HR policies may continue to evolve as new questions arise from new state-led policies. This could include a shift in expectations around work travel so pregnant employees won’t have to travel to or even through states with reproductive health restrictions, for example.

• If the GOP wins back the House or the Senate in the midterm elections, it could pursue a federal abortion ban or other obstacles to accessing reproductive health services.

Our Research and Insights team analyzed Twitter conversation following the release of the Dobbs opinion last week as well as public polling data around reproductive rights. Here’s what they found:

• Six in ten Americans disapprove of the Dobbs ruling, but there is a strong partisan divide.

• A majority believes Dobbs was politically motivated, undermining confidence in the court.

• Americans do not want Dobbs to become precedent for overturning other cases also decided under the 14th amendment.

• Twitter conversation about the Dobbs decision has slowed but there still are millions of tweets per day.

• People worry about Dobbs implications and share stories of consequences already unfolding, including the collapse of American democracy, risk of death for pregant women (especially black women), a surge in demand for the morning after pill, restrictions to IVF, brain drain from states banning abortion and increased poverty.  

• The left calls for policies that support families, mothers and children, like opening abortion clinics on federal land, expanding the court and getting out the midterm vote.

• Data privacy feels like a more pressing and personal issue than ever before, including concerns about location data and period tracking apps, putting pressure on tech giants to disclose whether they will comply with the law.

• Users are tracking corporate responses to Dobbs and how it aligns with broader company values and actions.

• Conservative users are less engaged in the conversation, but those who do tweet call out hypocrisy on the left, allege overly dramatic reactions and argue the court didn’t ban abortion but gave rights back to the states.

• Republican politicians push back on corporate engagement and introduce legislation to support women and children. They are attacking companies for extending coverage to abortion care, debating the role of women at home and in the workforce, issuing cease-and-desist letters to abortion funds and companies providing employee coverage and introducing "pro-life legislation" for pregnant women, new moms and children.

So what’s next for the Supreme Court after this term saw dramatic pro-business and anti-regulation effects?

• A particular brand of judging is ascendant. The conservative majority, as shown this term, is devoted to a strict originalist reading of the law and a history-based approach to interpreting it. They focus on the meaning of constitutional and statutory provisions as they were understood at the time they were enacted, read text literally and narrowly and take a dim view of rights that do not appear expressly or were not well established in prior eras. And they do not hesitate to apply this philosophy even where it topples what have been well-established expectations about the law.

• Additional legal rights and precedents could be revisited… Justice Clarence Thomas previewed a desire to revisit court precedents that confirmed constitutional protection for contraception, same-sex marriage and private, consensual sexual acts. Many observers predict future court action on these and other divisive issues like affirmative action, voting rights, free speech, privacy, religious exercise, environmental protection and gender identity, including where the law was considered settled.

• …But not immediately. Companies should begin thinking about the cases to come, though Supreme Court cases typically do not arise overnight. Legislatures and officials will need to act to invite legal challenges, which must percolate through lower courts before the Supreme Court accepts a case for review—itself kicking off a decision process that could take up to a year. Justice Thomas also has a lengthy history of identifying long-standing precedents he would like to review. The other conservatives disclaimed Dobbs was about anything other than abortion. Time will tell which rights and precedents remain undisturbed and where Justice Thomas finally has his majority.