With Leak of the Roe v. Wade Draft Decision, “First time in history that we are restricting a right.”

In Roe v. Wade, the Supreme Court struck down a Texas statute banning abortion, thereby effectively legalizing the procedure across the United States. This 1972 landmark decision recognizes that a woman’s choice to have an abortion is a fundamental right protected by the Constitution’s Due Process Clause of the 14th Amendment. 

Since 1923, the Supreme Court has interpreted the 14th Amendment’s liberty guarantee to include a broad right to personal privacy to make decisions about child-rearing, marriage, and termination of medical services. In Roe v. Wade, the Supreme Court held this right to privacy encompasses a woman’s decision of whether to terminate her pregnancy. In doing so, the Court acknowledged that a woman’s right to make decisions about her pregnancy is entitled to the highest level of constitutional protection. However, the Court also stated that a woman’s right to privacy is not absolute and must be weighed against the state’s compelling interest in safeguarding maternal health and protecting potential life.  

According to Stacey B. Lee, Professor of Practice at Johns Hopkins Carey School of Business, under the Roe v. Wade decision, in the first trimester of pregnancy, “the state’s interest in protecting the potentiality of life isn’t strong enough to overcome a woman’s right to privacy.” According to the Roe Court – that decision is only for the pregnant woman and her attending physician. In the second trimester, the state may regulate, though not ban, abortions to protect maternal health. When the fetus reaches “viability,” a state may regulate abortions or prohibit them entirely in the third trimester. However, the regulation must permit abortion when necessary to save the life or health of the mother.

Complete authority of state governments to prevent abortions at any time and under any circumstance appears imminent after the publication of a Supreme Court draft majority opinion overturning Roe v. Wade. 

Likely to be official this summer, the decision could prove devastating for the health and wellness of many women, challenge other precedents protecting civil rights, and change business practices. According to the Guttmacher Institute, 26 states are poised to ban abortion, causing more than 40 percent of women in the U.S. to lose access to such care in their home state. In addition, thirteen states have passed “trigger laws,” which would effectively ban abortions in those states almost immediately after the Supreme Court decision is final.

Professor Lee explained some basic concepts behind Roe v. Wade and shared her thoughts on how the ruling will impact women and businesses across the U.S.

The due process clause in the Constitution’s 14th Amendment protects and upholds an individual’s human rights and liberties. But does that mean that the Constitution protects Americans’ right to privacy?

If you look through the Bill of Rights, there’s no expressed “right to privacy.” However, it is sufficient to say that the right to privacy has constitutional level protections through the 14th Amendment. Out of liberty comes the right to privacy, so liberty and privacy are both connected and protected.

Supreme Court decisions have been overturned before. For example, in 1954, Plessy v. Ferguson was overturned when the justices unanimously ruled in Brown v. Board of Education that racial segregation of children in public schools was unconstitutional. So besides the issue at stake, what’s different about overturning Roe v. Wade? 

What’s significant about this case is it would be the first time in history that we are restricting a right that had been on the books for over 50 years. Historically, when the Supreme Court overturns precedent, it has been to expand the concept of liberty and make it available to more people. For example, overturning Plessy v. Ferguson ended constitutional protections for racial segregation, ensuring more people’s rights. Likewise, Loving v. Virginia expanded the institution of marriage to more couples. 

Beyond the right, for women to have an abortion, what are the implications for other forms of privacy if Roe v. Wade is overturned?

Suppose the Supreme Court abolishes the federal privacy protections in terms of abortion. In that case, it opens the door to limiting privacy rights for contraception, interracial marriage, gay marriage, and reorientation and surgeries. In his draft opinion, Justice Samuel Alito claims that this ruling only applies to abortion. During his [2006] confirmation hearings, he also claimed that Roe v. Wade was well-settled precedent. I don’t think it is being an alarmist to note that given the composition of the Court and the justices’ lifetime appointments that, many rights considered “well-settled precedent could be up-ended.”

Are there legislative options that would protect a right to an abortion? How could the Court interpret those laws? 

Possible legislative options are limited. For example, there’s been discussion about whether Medicaid funding could be made available to women so they could travel to other states for an abortion. However, many doubt that this process would be feasible. Any administration action to preserve abortion rights on a federal level would most assuredly face legal challenges from Republican attorneys general. I am skeptical that there would be a favorable result if these issues reached a Republican federal judge or the Supreme Court. Even if the challenges fail, they could take months to resolve. In addition, at least one Republican state lawmaker has proposed making it illegal for women to travel elsewhere to get abortions. 

Another possibility is for Congress to codify Roe v. Wade to protect abortion rights. While Democrats have a majority in the Senate, key Democrats have made it clear they will not support eliminating a filibuster that requires 60 votes for passage of most legislation. So even if the Democrats successfully killed the filibuster to codify abortion rights, the next time the Republicans take control of the house and presidency, they could reverse it. 

The impact that abortion restrictions could have on women living in states with abortion restrictions and bans, especially those with limited means, has been widely discussed. What are the implications for the companies that employ these women and how they do business? 

Employers no longer are just employers. As a result, we are seeing a shifting of expectations and responsibility in what we once assumed the government would provide. For example, during COVID, and until the Supreme Court overruled it, the government hoped to rely on employers to fill the gap in vaccinations and testing and enforce those types of health protections to the U.S. workforce. 

Companies need to reassess what they are willing to offer prospective and current employees to bring them back into the workforce after COVID. As the government redefines and increasingly shrinks the protections and benefits, it provides the American worker, to what extent are employers willing to fill that void? These shifts have changed the nature of employer-employee relationships. It’s been a remarkable evolution that I never anticipated.

The pending Supreme Court decision will impact business and industry, and employers react. 

It would be a mistake to say this is just a female issue. Regardless of the demographic, access to abortions, similar to COVID and the Affordable Care Act, are health issues that affect jobs, lifestyles, and the economy.  It would be a mistake to put the Supreme Court’s draft decision in a box and say, “I’m not a female, or I’m post-menopausal; this doesn’t impact me, so I don’t care about this.” The economy, politics, everything has changed. We are more interconnected than ever before, and this decision will affect businesses.

In the wake of a Roe reversal, you will see employers increasing their commitment to employees by providing them services to get abortions and, once again, filling that gap. Already there seems to be an interesting trend among large employers. Amazon, for example, is offering to cover the cost of transportation for women who live in Texas so they can get these services. In addition, SalesForce is offering to relocate workers[Currently, abortion in Texas is illegal once a fetal heartbeat is detected.]

Given your expertise in healthcare negotiations, do you see that as an area in which businesses will need to devote more time? 

Yes. How do you begin to have those conversations? First, we need to reimagine or recreate the types of health benefits available. For example, suppose I’m a woman who may want a child someday or am having difficulty conceiving. In that case, I’ll ask a prospective employer if the health benefits cover freezing my eggs or in vitro fertilization. Depending on where I live, I may need to ask about possible assistance to access health services not available in my state. Questions like those would be a healthcare negotiation as part of employee compensation and benefits discussions.

What else should businesses be thinking about?

Depending on where you’re located, employers have a challenge filling jobs. If I’m an employer, does abortion access in my state prompt me to offer more remote options to employees? I think that employers need to start examining, especially in the tech field, where the workforce skews younger Does that prompt me to help employees relocate? 

Employees may ask, “If I’m living or working in a state and something is not available to me, does my employer offer a hardship fund? What will you do to ensure I get the services I’d like?”