How employers should respond to dueling rulings that reveal the uncertainty of abortion access in the U.S.

– Dueling rulings. On Friday night, two judges issued contradictory orders on the status of mifepristone, a drug used for more than half of all abortions in the U.S.

First, Texas Judge Matthew J. Kacsmaryk issued a long-awaited preliminary ruling that invalidates the Food and Drug Administration’s 23-year-old approval of the drug. Kacsmaryk, a conservative Trump appointee, stayed his ruling for seven days, giving the FDA time to appeal; mifepristone continues to be available.

The same night, a judge in Washington state issued a competing ruling that orders the FDA to make no changes to the availability of mifepristone in states connected to a separate suit.

The dueling rulings set up the matter to head to the Supreme Court, with implications beyond the already critical issue of abortion access. Kacsmaryk’s ruling could undermine the ability of the FDA to approve and regulate drugs. The eventual fate of safe and accessible medication abortion in the U.S. Is unclear and confusing—for everyone, including businesses.

Jen Stark, co-director of BSR’s Center for Business and Social Justice and part of Don’t Ban Equality, an effort to engage business on the issue of reproductive rights, offers some advice for employers unsure of how to respond. While companies are often reluctant to weigh in on unsettled legal matters, Stark says that silence is equivalent to taking a stand. “The sidelines are not the middle ground anymore,” she says.

• Companies should speak up to the media when asked how the issue affects their workforces, she advises. Business associations can sign amicus briefs, engage privately with lawmakers, and provide safety in numbers for companies worried about stepping into the debate on their own.
• Businesses can engage lawmakers in their operational locations about pending legislation, including the Women’s Health Protection Act, state efforts to codify the right to abortion, and anti-abortion legislation that continues to advance.
• Companies should examine how their products and services could impact people who seek reproductive health care. Financial services, data tracking and surveillance, and pharmaceutical sales all intersect with abortion access.
• Companies that engage in political giving should reevaluate where their money is going ahead of the 2024 election cycle. “Employers that support diversity, equity, and inclusion need to consider the bottom-line and personal consequences of providing uncritical support to lawmakers that are advancing dangerous policies that are opposed by a majority of workers in the U.S.,” Stark says.
• Employers should communicate about these actions with their workforces. Abortion restrictions lead to more time away from work, logistical hurdles, and threaten worker safety and well-being. While many companies began to cover travel costs and implemented other policy and benefits changes after the overturn of Roe v. Wade, they should continue to proactively communicate to employees and answer questions in the wake of these rulings.

“Chaos and fear can make abortion care even less accessible,” Stark says. With these steps, employers can play a small part in lessening some of that uncertainty.

Emma Hinchliffe
[email protected]
@_emmahinchliffe

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PARTING WORDS

"I share all of this, not to garner sympathy or attention, but to remind the many people and families who have and will suffer in this way that there is no shame in this kind of loss."

—Actor Laura Benanti, who said she performed a concert for 2,000 people while she was having a miscarriage