Roe v. Wade Is No More – Some Thoughts for Employers


Although the Supreme Court’s decision overturning the constitutional right to abortion set forth in Roe v. Wade is not an employment case, there may be employment implications for many employers, ranging from workplace speech/activities to employee benefits and workplace policies. Here are some points to consider:

Workplace Speech. The topic of abortion is deeply polarizing and many employees feel strongly about the issue. This can lead to conflict in the workplace, which is complicated by the fact that the issue implicates both religion and politics.

Many employees may assume that the First Amendment’s right to free speech and assembly may apply to their ability to express their views on abortion and the Supreme Court’s ruling. But the First Amendment applies only to the government, and not private employers. This means that private employers can impose restrictions on speech in the workplace (subject to the considerations below). But at least two states – South Carolina and Connecticut – have enacted general free speech protections for individuals that would extend to the workplace – although such speech cannot be disruptive.

There are no federal laws applicable to private employers that protect employees on the basis of their political affiliation.  (Public employers, however, may be subject to such laws). As far as state laws, only a few – such as California, Louisiana, and the District of Columbia – have enacted laws that prohibit discrimination by private employers against an employee based on political affiliation. Some cities and counties may have local ordinances that also provide such protections. In those jurisdictions, employers cannot take any adverse employment action against an employee simply because they support a particular political party. However, again, any activity associated with such affiliations may not be disruptive.

With regard to religion, Title VII and state anti-discrimination laws protect employees’ right to be free from religious discrimination and require employers to provide reasonable accommodations for employees’ religious needs. Such accommodations, however, cannot impose more than a de minimis (or minimal) burden on the employer – and we suggest that disruptive speech would be such a burden.

Of course, employers need to ensure that they are being consistent in enforcing any prohibitions on speech and other activities (such as displays of buttons or posters) in order to avoid any claims of discrimination.

It is also important to note that the National Labor Relations Act, which applies to both unionized and non-unionized workplaces, protects employees’ rights to engage in discussions about the terms and conditions of employment. So if the discussion involves any new abortion-related benefits, for example (see below), that specific discussion may be protected under the NLRA.

Benefits and Policies. Some employers would like to support their employees’ access to abortion services. There are various options that may be available to employers – subject to state law restrictions. It is important for employers to consult with employee benefits and/or employment counsel in considering these options, which may include:

  • Health care coverage for abortion services
  • Travel expenses (including transportation, food and lodging) for employees (and possibly a support individual) who need to travel to another state to receive services
  • Payment of legal fees for employees who face prosecution under state laws
  • Modifications to criminal background policies to exempt abortion-related convictions

Given that the bans on abortion may result in an increase in childbirths, employers may also wish to explore enhanced benefits for parents, such as:

  • Paid parental leave policies
  • Childcare benefits
  • Flexible work schedules
  • Adoptive services

In conclusion, employers that are considering changes in policies and benefits in reaction to the Supreme Court’s ruling must be thoughtful about such plans. It is critically important to monitor changes in state laws, particularly as more “red” states seek to pass legislation that penalizes those who assist others to receive abortions – which could certainly implicate some of the benefits listed above.