Kavanaugh & the New Fortune 500 Civil War

Brett Kavanaugh
Brett Kavanaugh, SCOTUS judge. Photo: Drew Angerer/Getty Images
Eriq Gardner
June 27, 2022

On Friday, in Dobbs v. Jackson Women’s Health Organization, the Supreme Court overruled Roe v. Wade by concluding there was no constitutional right to an abortion. As a result, states are now free to impose absolute restrictions on a woman’s ability to terminate a pregnancy. Thanks to so-called “trigger laws” in 13 states, abortion is now illegal in a good portion of this nation. Recognizing this, many corporations including Disney, Amazon, and Starbucks have been expressing their intentions to support employees who wish to travel to states where abortions will still be available, assuming, that is, the Constitution really is “neither pro-life nor pro-choice” but “neutral” as Justice Brett Kavanaugh writes, and states are free to permit “abortion on demand.”

Is offering reimbursement for abortion travel more than a gesture? Will it amount to a brave act? Do these announcements foreshadow some willingness to fight for abortion rights? And if not, can Corporate America even avoid the turmoil to come? These are hard questions to answer because I’m not convinced that executives have really grappled with the post-Dobbs mayhem ahead. After all, until now, most companies have remained on the sidelines of the abortion debate.

The fact that major corporations kept a low profile on the abortion issue might not seem surprising, but that certainly wasn’t their posture in 2015, when the Supreme Court was tackling the hot-button cultural topic of gay marriage. Back then, 379 big companies including Apple, AT&T, Coca-Cola, Dow Chemical, and the New England Patriots told the justices in an amicus brief that allowing states to prohibit gay marriage would impose economic burdens on them. What’s more, they added, “The end result is employee uncertainty, low morale, decreased productivity, and increased costs.” 

A few years later, in 2019, many of these same companies were back at the Supreme Court with another amicus brief that posited that business interests would be undermined if federal employment discrimination laws excluded sexual orientation and gender identity. They told the justices to take a more inclusive approach to civil rights even though the result would likely mean more litigation against them. The result? In Bostock, Justice Neil Gorsuch shocked observers by not only siding with the liberals but authoring the majority opinion.

And yet, there were no corporate protests this time to persuade the justices in Dobbs. These companies have also been quiet in the face of recent laws like Texas’ SB 8, which deputized private citizens to sue those facilitating abortion. Given such meekness, what happens now that emboldened states will try to enact legislation to deter abortion beyond their borders? How will corporations react when state lawmakers start targeting their abortion support? Should anyone really bet on companies pushing back? I wouldn’t just yet.

I find Kavanaugh’s concurrence with the majority decision to be the most interesting, not only because he is now the Supreme Court’s swing vote, but also because he asserts, somewhat naively, that abortion-related legal questions raised by Dobbs aren’t especially difficult. “For example, may a State bar a resident of that State from traveling to another State to obtain an abortion?” he asks. “In my view, the answer is not based on the constitutional right to interstate travel.” (Never mind that the Constitution is as silent about travel as it is about abortion.)

But Kavanaugh isn’t being particularly imaginative. Consider Texas. Some lawmakers there are now discussing barring corporations from doing business in the state if they pay for employees to have abortions. There’s even talk that corporate executives could be prosecuted under pre-Roe laws that were never repealed. We’ll likely see more and more abortion-motivated attempts to regulate interstate trade. And in Congress, even if federal lawmakers can’t legitimately bar abortion-related travel, that’s not to say Republicans can’t make this activity expensive as hell for corporations to bear. Already, Sen. Marco Rubio is proposing amending the tax code so that corporations can’t deduct abortion expenses.

Again, how will corporations respond? Perhaps they’ll heed Disney’s troubling experience in Florida after the Mickey Mouse company recently took a public position on the “Don’t Say Gay” bill. Maybe they will try to avoid being seen as similarly “woke” so as not to piss off conservatives.

Then again, is it really possible to stay above the fray? Forthcoming state laws will surely put pressure on employer health plans and implicate workers’ privacy, too. Each and every subject related to abortion will invite logistical headaches and legal scrutiny. Plus, new attempts to regulate corporate behavior will come not just from states frowning upon abortion. There will also likely be blue states that wish to punish those in red states who interfere with someone’s ability to get an abortion. In short: It’s war! And no one gets to be Switzerland.

In his concurrence, Kavanaugh addressed the doctrine of stare decisis and wrote that respect for precedent could be overcome when a prior decision is egregiously wrong, when a prior decision has caused significant real-world consequences, and when overruling the decision would not unduly upset legitimate reliance interests. That last part is worth some emphasis. Reliance means that choices have been made based on an expectation of a certain status quo. The liberal justices in the minority address this reliance issue by saying that women have grown up and made life choices expecting they’d be able to avail themselves of Roe’s protections. No one really addresses the choices that companies have made, including where to base their operations. In a footnote, Kavanaugh responds that “broad notions of societal reliance” aren’t good enough—that there was a time in the early 20th century when businesses relied upon prior Supreme Court decisions “to construct a laissez-faire economy that was free of substantial regulation.”

Perhaps that’s an admission that there indeed could be sweeping change ahead, and that American enterprise better suck it up. These companies could have, but didn’t, point the justices to specific pains they’d endure from two Americas—one where abortion was legal and one where it wasn’t. Such outspokenness didn’t happen this time, and should there come a future when companies are dragged into culture war battles in each and every state, they may come to regret that.

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