Texas Employers Funding Abortion Travel Try to Stay out of Conservative Lawmakers’ Crosshairs
“If you poke your head up on an issue like this, you risk becoming an enforcement target.”
Republican Texas legislators who sent a threatening letter to Sidley Austin last week over the law firm’s policy to pay for out-of-state abortion travel also have other Texas employers offering that benefit in their sights.
The far-right Texas Freedom Caucus’ letter to Sidley threatened the law firm with civil penalties, felony charges, and disbarment for its policy. It also said lawmakers plan to introduce legislation prohibiting “any employer in Texas from paying for elective abortions or reimbursing abortion-related expenses—regardless of where the abortion occurs.”
The ride-sharing service Lyft, which has been an outspoken advocate of abortion rights, already has been a target of Texas anti-abortion lawmakers’ fury. In early May, weeks before the Supreme Court overturned Roe v. Wade, lawmakers sent a letter to CEO Logan Green chastising him for announcing that the company would pay travel costs for women who leave Texas or Oklahoma for abortions.
“Your decision to divert corporate resources to this end is unacceptable and will not be tolerated. Your responsibility as a CEO is to maximize return to the shareholders, not to divert shareholder resources toward ideological causes in an effort placate the woke liberals in your C-suite,” said the letter, which was signed by 14 lawmakers, six of them Freedom Caucus members.
Legal experts say that while Texas likely would face hurdles to building a legal case restricting access to healthcare outside state boundaries, the hard-line rhetoric is giving some companies pause about adopting—or publicizing—abortion-related benefits.
Michelle Browning Coughlin, of counsel at the Kentucky office of ND Galli Law, said she considers legislators’ threats “empty.” Even so, she said, as in-house counsel, “you can’t just be cavalier about advising your company to do something that could be dancing them into potentially breaking the law.”
Texas employers that previously issued promises to defend employee access to abortion are laying low. Lyft, Apple, Bumble, Comcast NBCUniversal, Dick’s Sporting Goods, HP Enterprises, Kroger, Match Group, Nike, Uber, and Warner Bros. Discovery did not respond to requests for comment. One general counsel who declined an interview said there was little benefit to standing in the spotlight on the divisive topic: “I can understand why people don’t want to go on record on this particular issue.”
Rob Chesnut, a former Airbnb general counsel and chief ethics officer, agreed. “If you poke your head up on an issue like this, you risk becoming an enforcement target,” he said.
The threats in Texas provide, perhaps, an early warning of the issues that companies across the country will be facing in the coming months and years, particularly in conservative states outlawing abortion.
Elizabeth Myers, a Dallas-based partner with Thompson Coburn, said she doesn’t want companies to cower under the pressure. “I think it is important for in-house counsel to remember that the organizations and clients that they represent and work for often have some of the most powerful voices with respect to the Texas legislature, with respect to local politicians, and with respect to the federal government,” she said. “It’s really unfortunate that we’re at a place where people’s bodily autonomy is dependent on large corporations and businesses, and small ones, speaking out and demanding more. But that’s where we are.”
Myers said the Freedom Caucus and other abortion opponents in state government “have been targeting folks who help people access abortion in Texas for years, and what they’re doing now is moving on to corporate entities, rather than just focusing on nonprofit organizations who’ve been terrorized and harassed.”
Browning Coughlin said Texas authorities could face challenges building a case against companies with travel policies, in part because the evidence that an employee actually received an out-of-state abortion would be difficult to obtain.
Even so, Travis Gemoets, a Los Angeles-based partner with Jeffer Mangels Butler & Mitchell, said the fact that legislators’ threats touch on unsettled areas of the law might be enough to make companies nervous. “To prohibit this interstate activity seems to be pushing the envelope for any state institution,” he said. “But they’re doing it, and they’re certainly going to threaten it until they’re told that they can’t do it. … We’re seeing the very, very beginning of these issues, but it’s going to take years for courts to weigh in.”
The uncertainty will create a chilling effort, he said. “If my client received a letter like this, I would say, ‘Look, I can’t tell you you’re free and clear to do what you want. We just don’t know the landscape.’”
Walking back abortion benefits after receiving a threat, however, could result in even more threats, Gemoets said. “If Texas is finding that it’s getting headway with this approach, you’re going to see other jurisdictions, other states replicate that approach.”
Browning Coughlin said companies that continue to offer abortion-related benefits will likely feel pressure to be less open about their existence, in order to reduce risk. But there is another option, she said: Move Texas-based operations to another state.
“If you have the power to respond in a way that has some equal force … to the way that these Texas legislators are coming after people, I would try to do so,” she said.
Texas Freedom Caucus representatives did not respond to requests for comment.
From: Corporate Counsel