Editor’s note: The following is a comment from Megan McNally, business lawyer and founder of the FBomb Breakfast Club, a peer support community for female founders and business owners.
Abortion is health.
When the Supreme Court delivered its opinion in Dobbs vs. Jackson Women’s Health Organization On Friday, the tech community was quick to praise Microsoft, Meta and other industry leaders for pledging to cover health and travel costs for employees who can no longer access healthcare in safe where they live.
But that advantage, like so many corporate actions in the days and weeks following the murder of George Floyd, is a cheap and dishonest ploy. And rolling out these benefits could be dangerous for employees.
Let’s start with the cheap ploy.
What were these tech giants doing when the Senate refused to hold confirmation hearings for a sitting president’s Supreme Court nominee in 2016?
What about when three ultra-conservative candidates were selected directly from Leonard Leo’s slate to reshape the Court, even out of step with the majority of Americans, 62% of whom call themselves moderate or liberal in ideology?
What were they doing between May 2, when the draft Dobbs notice has been leaked, now what?
They were funding it all. That’s what tech companies did.
Amazon, Microsoft and Google’s PACs were among those funding politicians who scored zero on the Congressional Human Rights Campaign Scorecard.
Amazon, Facebook and T-Mobile were among those who funded the Republican Attorneys General Association (RAGA), a group that actively organized the January 6 insurgency.
In 2016, 51.28% of Amazon.com’s PAC contributions went to Republican candidates. The company increased its GOP contributions by 242% in 2018.
I could go on, and it’s hard to get the full picture through black money. But enough information is in the light to illuminate Big Tech’s robust and active role in shaping Congress and thus federal appointments, laws, and funding.
Let’s move on to the very dangerous idea that every employee should disclose to their employer that they or a family member is seeking an abortion.
It is important for tech companies to offer health plans that cover the full spectrum of human health care for every human being. It is imperative that employers remove barriers – like the cost of travel – to accessing health care when they cannot do so safely where they live.
But that’s problematic: Access to this particular benefit means the health plan now has a record. If the health plan has a record, so does the employer. This is especially difficult when you consider the growing movements promoting whistleblowing to private citizens by suing doctors or anyone who helps a woman have an abortion – see Texas and Oklahoma, for example.
While a health and labor law privacy protection matrix should theoretically activate to prevent most employers from accessing this information and using it in individual employment-related decisions , no one should be fooled into trusting this disparate legal framework given the precedent now set by Dobbs.
The Dobbs decision, taken together with other decisions that term (see, for example, Kennedy vs. Bremerton, Vega vs. Tekoh, and New York State Rifle & Pistol Association, Inc. vs. Bruen), profoundly changes our understanding of constitutional rights. By overturning Roe versus Wade, the Court eviscerated the very (so-called) American concept of due process and warned us all about the right to privacy.
Write for the Dobbs majority, Justice Alito said that Roe “… considered that the right to abortion, which is not mentioned in the Constitution, is part of a right to privacy, which is also not mentioned. Because the right to privacy is not explicit in the text of the Constitution (the importance of which for them is repeatedly mentioned), and because we now have a majority Court of textualists, it would be foolish not to expect challenges to other rights that have been found in the implied right to privacy, including in the areas of employment and health. And so it is also not unreasonable to fear that access to abortion through an employer-sponsored health plan puts employees at risk of prejudice and discrimination affecting their careers, which risk falling disproportionately on those who have no choice but to rely on their employer for such care.
If tech leaders really care about human rights, here’s what they should be doing right now:
- Rewrite lobbying agendas to lead with human rights and equity, including health equity, at the federal and state levels. Flex that muscle to press Congress to act on federal abortion rights.
- Take data privacy seriously, including explicitly agreeing not to cooperate with criminal investigations related to abortion.
- Stop doing business in states that actively violate human rights.
- Put more women, LGBTQ people and people of color in meaningful leadership positions that control strategy, policy and resources.
- Pay people transparently and fairly.
The United States is becoming an increasingly divided country with glaring gaps between haves and have-nots, and an extremely dangerous place for black people, indigenous people and people of color, for women, LGBTQ people and immigrants. .
Tech companies shouldn’t be hailed as heroes for issuing press releases with performative band-aid solutions to the problems they’ve funded. It is a crisis that they themselves created.
To deny people health care is to deny them the right to participate fully in society. Thank you Amazon, Facebook, Microsoft et al for subscribing to the disaster that is unfolding now. Forgive me if I’m not ready to give you a humanitarian medal.