Roe Falls; Compliance Programs Brace

They say that a columnist writes about what people are talking about, so there’s only one thing to write about today: the immense implications of the Supreme Court’s decision to invalidate Roe v. Wade. Even at this early stage, the consequences for corporate ethics and compliance programs are emerging fast and furious. 

We can begin with the immediate response from much of Corporate America, promising to cover employees’ travel to pro-choice states when they need an abortion. How, exactly, is that supposed to work? The scenarios you’ll need to anticipate are enormous; and they could bring profound strains to your compliance policies and procedures. 

For example, will employees need to provide documentation that they’re pregnant? What documentation would they need? A pregnancy test? An ultrasound? Fetal remains after the procedure is done? 

What about extending coverage to part-time employees, or contract labor working next to your full-time employees? What about a male employee with health insurance for his family, with a 16-year-old daughter who wants an abortion — would she be covered? What if she wants an abortion without her parent’s consent? 

Forced-birth laws will be a compliance nightmare, too.

How would you keep all that information private? Will your employee in a forced-birth state need to ask permission from a supervisor in Massachusetts, California, or some other pro-choice state? Will you keep her information in those states, which have already vowed not to cooperate when investigators from forced-birth states come knocking

What if other supervisors in forced-birth states have access to those HR databases as a matter of routine job duties? Do you instruct them not to look? Do you fire them if they look anyway and report their coworker to the police? Do you cut off their access to those databases preemptively?

We could keep spinning up these What If scenarios all day long, which is precisely my point. HR, legal, and compliance teams need to consider these scenarios right now, because they’ll be coming upon you more quickly than you think

The company will need to decide what its policies will be, and then you’ll need to devise a way to implement those policies — including training, privacy controls, investigative procedures (“And when did you decide to delete your period-tracking app, Ms. Smith?”), and disciplinary responses. The answers you reach might have consequences for business operations, such as our hypothetical of restricting certain supervisors from seeing HR data. You’ll need to consider those scenarios, too.

This isn’t going to be a nightmare for policy management. It already is a nightmare for policy management. 

Which brings us to our next, equally difficult headache.

Ethical Priorities After Roe

Let’s step back and understand what’s really going on here. By overturning Roe v. Wade, the Supreme Court has cleared the way for individual states to act as Big Brother, dictating a woman’s reproductive decisions.

Companies now promising to cover the costs of travel to pro-choice states — well, that’s nice, but essentially they are acting as another Big Brother, trying to protect employees from the state Big Brother. And at least some companies (lookin’ at you, Hobby Lobby) will welcome the court’s decision, and work as a Big Brother to help forced-birth states investigate and punish women who have abortions.

So the ethical priorities of these Corporate Big Brothers will become important to lots of people. Corporate executives will need to anticipate this, too.

You might already have had an inkling of that point while reading my scenarios listed above. For many of them, it would be perfectly reasonable for a compliance officer to think, “That’s a decision above my pay grade.” 

Quite so. Very quickly, senior executives and the board will need to decide what they want the Corporate Big Brother to do. Only then, after senior management articulates those ethical priorities and objectives, will compliance officers be able to follow up with more specific policies, procedures, and controls.

Also understand, however, that companies will need to defend those ethical priorities to stakeholders. Brace for those conversations to get heated.

For example, JPMorgan Chase has promised to cover employees’ travel to pro-choice states when they need an abortion. OK, but JPMorgan’s political action committee also sent $355,000 to Republican officials in 2020, and another $57,000 to GOP officials so far this year, too. Those elected officials are the ones who stacked the Supreme Court with the right-wing justices who overturned Roe, and who want to enact every piece of forced-birth legislation they can find.

So as much as JPMorgan’s chief executive, Jamie Dimon, might style himself as a reasonable, pro-choice CEO, the truth is that his company is burning shareholder money at both ends. Does anyone really believe employees, shareholders, customers, and other stakeholder groups will remain silent about the financial and ethical implications of that? 

JPMorgan isn’t even the most glaring example. More than a dozen companies have donated millions to GOP political groups since 2016, and then spent this weekend promising to help employees travel to pro-choice states. 

Now, I understand that the above companies didn’t donate to the Republican Party to overturn reproductive rights — but they cannot escape the fact that taking away reproductive rights is a fundamental objective of the Republican Party. The companies’ donations helped to bring the United States to this point, and now they’re promising to spend even more money to paper over the mess their self-centered political spending helped cause.

Prepare for those practices to go under the ethical microscope. 

We will, I am sure, see shareholder resolutions calling on companies to take a stronger stance on reproductive rights. Institutional investors such as college endowments and pension funds will likely land on the side of reproductive rights. So will a great many of your employees, customers, and the public at large.

Those pro-choice groups are going to find each other thanks to social media, and start forming alliances to exert pressure. This is the encirclement theory of stakeholder activism that we’ve seen before. I suspect it will return with fury (like, literal fury; I’ve never seen so many women so angry about the same thing at one time) now. 

What happens next will be tumultuous at all levels of the modern enterprise: in the boardroom defining ethical priorities and culture; in the C-suite communicating policies to employees and customers; in the CCO’s office as you struggle to manage policy and procedure; in the general counsel’s office as you struggle with fact patterns and litigation risks that will make you dizzy; on the office or factory floor as employees wonder what’s going on.

And most of all for the women, who don’t deserve this indignity to their person. What a mess this arrogant, out-of-touch Supreme Court has foisted on us all. 

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