Six Actions for Business in 2025 Post-Roe America

Since the fall of Roe v. Wade in June 2022, businesses ranging from publicly traded to owner-led are trying to bridge the gap in abortion access as part of workplace health, safety, and readiness in the years that followed. Simply stated, abortion access is part of gender equality, implicating over half of the workforce at various points in their career trajectories, as well as the economy on a macro level.

Furthermore, efforts to criminalize and ban abortion access harm more than just workers’ access to healthcare. Heading into 2025, threats to data privacy, commerce, travel, and regulatory structures add cost, chaos, and uncertainty across business operations.

Throughout 2024, the public’s support for abortion access increased across party lines, and demonstrable advances were made in the states. Voters in seven states expanded and protected abortion access for millions of people.

The stakes for business continue to grow as they wrestle with the workforce impact as tragic stories break through—from mothers, daughters, sisters, and wives—who have faced needless barriers to accessing care resulting in fatal or severe consequences from delays or ‘turnaways’ from emergency rooms. These women are executives, board members, frontline workers, and community leaders.?

While the new U.S. president said he plans to “leave the issue to the states,” it is more likely that the administration will spur an onslaught of additional barriers to accessing abortion, along with other forms of reproductive healthcare, ranging from contraception and miscarriage management to IVF.

Notably, there may be an effort to seek enforcement of the Comstock Act, which could be weaponized and interpreted in a way to serve as a legal basis for a nationwide ban on medication abortion. Additionally, threats to employee benefits and how they are administered may be on the horizon. Another concerning prospect is that federal contracting could be weaponized to disincentivize companies from protecting their workforce.?

At the state level, attorneys general and legislators will continue to have an important role in determining how abortion laws are protected or enforced. Access to abortion, fertility care, and maternal health care increased in 25 states and the District of Columbia. Simultaneously, there were continued attacks on reproductive health care, with a focus on creating barriers to fertility care, maternal health care, and abortion access, perhaps muted somewhat because these measures are not popular to amplify in an election year.

As state policies diverge, businesses will continue to play an increasingly important role as a firewall for their workforce. Restrictive policies continue to sow confusion and fear as healthcare providers navigate opaque laws creating avoidable medical emergencies and compounding existing issues from financial to travel burdens as distances to access care increase.

Physicians, threatened with criminal and financial penalties, continue to leave states or residency where abortion is banned, exacerbating healthcare deserts.

In an increasingly fraught landscape with new and quickly changing restrictions on a state-by-state basis, companies can expect to see increased litigation and costs. Companies should be prepared for the following actions from both state and federal actors, and their stakeholders:?

• Increased scrutiny and enforcement from attorneys general. In 2023, Republican state attorneys general threatened a civil suit against pharmacies dispensing mifepristone (one of two drugs commonly used in medication abortion). Recently, Texas sued a New York doctor for prescribing to a patient near Dallas, launching one of the first challenges in the U.S. to shield laws.?Expect more actions from Republican attorneys general moving forward, with a sustained emphasis on medication abortion and the Comstock Act.
• State laws imposing financial penalties. Expect state legislators in abortion-restrictive states to continue to introduce bills seeking to penalize companies for policies that arguably conflict with state law. As an example, during the last legislative session, lawmakers in Texas introduced bills that would remove tax incentives for companies that provided abortion-related funding or would prevent local governments from doing business with such companies (even if the benefits were provided only outside the State of Texas).?
• Pressure from a company’s stakeholders, such as shareholder proposals regarding abortion, and employee demands. Companies should be prepared for increased scrutiny not only from state actors, but also from their stakeholders who will be interested in the company’s response to further legal changes moving forward.?
• U-turns on regulation. While much of health policy will be shaped by executive and legislative action under the incoming administration, a variety of pending lawsuits also may be affected. The outcome of pending litigation and potential regulatory changes under the new administration will determine whether employers must provide accommodations to employees after an abortion as part of the Pregnant Workers Fairness Act.?

In response, companies can take the following actions to prepare, anticipate, and protect their workforce, as well as communities where they live and work.?

1. Review employee health plans to understand and evaluate how they provide reproductive healthcare; what employees or groups of employees are entitled to this care; and how this care is provided in various states. Audit the availability of care to ensure coverage under all circumstances within networks through medical plans where the company operates, including remote workers. Companies are encouraged to:?

• Establish or expand overarching programs that support employees in emergencies and/or with travel costs associated with seeking healthcare in addition to paid sick days.?
• Close the gap on abortion access for workers that may not be eligible for regular benefits, such as hourly workers and contractors.?
• Communicate benefits and existing programs available to workers to help them access time-sensitive and confidential healthcare rather than making it hard to locate.?
• Take the Reproductive and Maternal Health (RMH) Compass benchmark, a new comprehensive performance standard for employers to measure their reproductive and maternal health benefit offerings.
• Have policies that support workers in the face of emergencies, such as a pregnant employee facing a healthcare crisis while traveling for work in a banned state.?

2. Make reproductive health access part of event and office site selection: Reproductive health influences people's choices about where they want to live and work. In the past two years, reproductive healthcare was included as a factor in determining CNBC’s Top States for Business. The National Bureau of Economic Research recently tracked that since the second quarter of 2023, the 13 states with total abortion bans are collectively losing 36,000 residents per quarter. Additionally, for the third consecutive year, a BSR/Morning Consult poll indicates by a 2 to 1 margin, workers want to be in states where abortion is legal and accessible.?

Companies may not publicize that reproductive health access is a decision-maker in site selection, but it is a new variable. Business leaders can:?

• Understand and manage the growing safety risks related to travel for your workforce. Review existing or consider establishing travel policies that acknowledge the risks of hosting events in places where abortion is illegal or inaccessible.
• Ask questions relevant to event site selection as well as long term footprint.?For events, consider using contract language that allows cancellation without penalty if a destination state enacts legislation that would repeal existing legal protections or bans access to healthcare.??
• Consider state restrictions on reproductive health when selecting office locations, data centers or related assets that might give a state jurisdiction over the user data.?

3. Conduct a human rights due diligence assessment to identify risks to reproductive health privacy that may be associated with the development or use of new or existing platforms, devices, products or product features. The collection of user data by companies in all industries, and tracking of user’s online activity, movement and information creates significant risks to seekers and providers of reproductive healthcare services. This leads to operational and reputational risk for employers, brands and companies.?(For example, the greater the distance an individual must travel to access abortion, the greater the digital trail created). Within recent years, an increase in litigation shows the direct risks of breached data privacy in relation to those seeking abortion care as cases surrounding geolocation data sharing, social media messaging, and digital information concerns escalate. Companies can:?

• Apply best practices for privacy principles such as data minimization, purpose limitations, purpose-based data retention, and user transparency and control.
• Deploy end-to-end encryption on private messaging services.
• Set default privacy settings to the highest level of privacy protection and ensure privacy protections are based on an opt-out model, not an opt-in model.

Shareholders are calling on companies to safeguard sensitive customer and user data that may be used to prosecute abortion cases, and regulators are requiring global companies operating in the EU to assess, address, and report on the negative human rights impacts connected with activities.?

4. Implement abortion-specific subpoena-response plans that are compliant with federal and state data privacy laws but scrutinize what is requested as well as informing consumers or clients of requests. As part of these plans, companies should ensure that their internal legal teams are involved and directly engaged in compliance efforts. Prosecutors may work in collaboration with law enforcement to gather financial information such as purchasing history or transaction data to prosecute individuals and healthcare providers. While the tech industry is often the most scrutinized, the finance, travel and retail pharmacy industries are also implicated. BSR published a roadmap, Navigating the Rollbacks in Protection of Reproductive and LGBTQI+ Rights in the United States: A Guide for Financial Institutions to equip consumer and institutional client-serving financial firms to assess and address the threats caused by criminalization.

5. Educate officeholders and decision-makers about the cost, chaos and collateral damage of abortion bans on the private sector. Business leaders should share with officeholders and decision-makers how abortion access is a material business concern. The collateral harm of restrictions extends well beyond abortion access – implicating talent pipelines, state reputation/rankings and creates unnecessary burden for business in an already fraught environment. Collective diplomacy by the business community can be a powerful way to educate officeholders on the cost and chaos caused by bans and restrictions. In particular, small businesses are among the most trusted institutions across the political spectrum. Companies can:?

• Prepare executives, including board members, to understand the topic and the vast implications. Executive awareness, understanding and support for wrestling with the complexities within the company is a prerequisite.
• Privately work in coalition through business associations at the local, state and federal level to find ways to raise the issue as a geographic and/or industry concern.
• Join amicus briefs to signal an understanding of the greater stakes. A historic number of companies have signed onto litigation supporting reproductive healthcare since 2022.?In the case of Idaho v. United States where abortion care is considered a stabilizing medical treatment under the federal Emergency Medical Treatment and Labor Act (EMTALA), businesses argued that Idaho’s reproductive health care restrictions were negatively impacting the economy and business. Previously, a business amicus was also submitted in the Zurawski v. Texas case as well as a multi-industry response on the Alliance for Hippocratic Medicine v. FDA case.?
• Get updates from Don’t Ban Equality, a platform that enables companies to work with peers across the private sector on the workforce impact and economic costs of abortion restrictions. Companies can sign onto the platform and/or select to receive updates including monthly newsletters and quarterly calls.?

6. Reconsider political giving from this perspective. In a highly divisive political environment, the unmet need for companies to find ways to better align political influence with operational and workforce policies is harder and more necessary than ever. Abortion access is widely supported and also now legislated in every state. Steps companies can take include:

• Consider how well the company’s political contributions align with stated values, mission and policy priorities. Review and update criteria for making political contributions and test what giving preference to candidates and organizations that support abortion access, IVF, miscarriage care and reproductive health, overall, could look like.
• If reallocation is not possible, commit to educating recipients of political donations on how their positions on social issues harm the workforce, have demonstrable collateral damage and are not conducive to a robust business environment.

BSR’s Center for Business and Social Justice works with experts in reproductive health to provide actionable guidance to business. BSR members can contact the Center with inquiries.

This article was authored by BSR Co-Director, Center for Business and Social Justice Jennifer Stark and BSR Manager, Equity, Inclusion, and Justice Ashley Lin and was originally published on January 16, 2025 on www.bsr.org.