Corporate America has stepped up more than I expected over the end of Roe v Wade – but it isn’t yet enough

The corporate reaction to the end of Roe v Wade, which constitutionally guaranteed the right to an abortion for American women, has been swift. While America’s business titans have been relatively cautious in their public statements on what is a polarising issue, there has been some action.

Fortune 500 companies have lined up with pledges to cover the travel costs, mostly through their health insurance plans, of female employees who decide to have out-of-state abortions. Disney, Meta (Facebook), Amazon, Microsoft, Lyft, JP Morgan, Goldman Sachs, Conde Nast (the publisher whose titles include Vogue), health insurer Cigna, PayPal, Alaska Airlines, Yelp, Starbucks and Dick’s Sporting Goods all said they would do this.

That’s an impressive list, and it is by no means exhaustive.

It may also be significant that some of those companies (Disney, Amazon, etc) employ large numbers of people on relatively low wages in states where “trigger” laws are on the books, bringing bans rapidly into force, prior to the Supreme Court’s appalling – and nakedly political – ruling.

It is the economically disadvantaged, particularly those from minority groups, who will suffer the most from abortion restrictions and bans. If this offers relief to low-waged staff, then great. Those of limited means have been suffering most from the tightening restrictions in some states in recent years. Those with money have been able to get around them.

At the outset, we should state that protecting their staff is unequivocally the right thing for these employers to be doing. But let’s also be realistic. Corporate entities rarely – in fact almost never – take decisions based on moral grounds alone.

Factoring into their calculations may well have been that while this may be a polarising issue, nearly two-thirds of Americans favour some level of abortion access. Pollsters’ questions vary but there is clearly a pro-choice majority in the US. That figure is higher when the responses of women are considered. In a tight labour market, it’s never a bad idea to get onside with a substantial chunk of the working population. And there are customers to think of, too. The decisions start to look as much pragmatic as principled when these considerations are taken into account.

As more companies offer travel costs, it is inevitably the case that more will want to join them. Those that don’t will start to stand out, and not in a good way.

Where it gets interesting is when it comes to the legal implications for those on the list. You can bet these will have been carefully considered and vetted by counsel, in house and probably external, before these companies made their promises. Businesses never take big decisions without considering the legal implications first. Not doing so can prove ruinously expensive.

That doesn’t mean that the issue won’t be tested in court. The court’s ruling was the result of a decades-long campaign by parts of the religious right and its allies. Anyone who thinks this is the end of the matter is naive. Legal activists will be sharpening their quills in pursuit of a test case. Good times for lawyers if no one else.

This is where it starts to get complicated, because of the nature of different laws covering health insurance and how Americans are insured. However, I don’t propose to get into the technicalities of American insurance law. Suffice to say that there is a high chance this ends up back with the Supreme Court, which will then have to consider questions of abortion law and US states seeking to restrict or hamper travel across state lines.

Here, at least, the Donald Trump-nominated Supreme Court justice, Brett Kavanaugh, may have provided the companies promising paid travel to their female employees some comfort. In his concurring opinion on the ruling striking down Roe, he wrote: “Some of the other abortion-related legal questions raised by today’s decision are not especially difficult as a constitutional matter. For example, may one state bar a resident of that state from travelling to another state to obtain an abortion? In my view, the answer is no, based on the constitutional right to interstate travel.”

If Kavanaugh is as good as his word – no guarantee given what Maine’s moderate Republican senator Susan Collins has been saying about their private conversations on Roe prior to his confirmation – you would imagine women fortunate enough to be employed by one of the named companies will at least have options should they need to assert their reproductive rights.

There are still other complications. There may, for example, be a need for a place to recover after getting the procedure. That can get quite expensive.

These pledges will also likely miss out a significant group of employees: contractors. All big businesses rely on contractors, often for a dizzying array of functions. They can sometimes account for as much as half of a company’s labour. Sometimes more.

Contractors are typically employed on terms and conditions that are inferior to the full-time employees of the companies they provide services for. It is for this reason that Britain’s living wage campaign insists that contractors are included when businesses seek accreditation as living wage employers and display its badge. It isn’t enough to ensure that the people you employ directly are looked after, which explains why the campaign’s stance is the right one.

Those companies which really want to be on the right side of this one, which want to take a stand for the rights of half of the working population, and to protect the health and bodily autonomy of that population, need to find a way to include their contractors too.