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Abortion Looms as ESG Issue for Companies After Voiding of Roe

July 8, 2022, 9:00 AM

Companies are being cautious and deliberative in how they factor abortion into their long-term ESG plans despite demands for swift action from shareholders, employees, and the public after the Supreme Court overturned Roe v. Wade.

Following the ruling in Dobbs v. Jackson Women’s Health Organization, companies including Microsoft Corp., Meta Platforms Inc., and JPMorgan Chase & Co. said they would help cover employees’ travel costs to access an abortion. Other companies have issued more neutral statements, citing their existing health benefits.

Critics on social media were quick to point to big corporations that didn’t immediately voice any statements, including Walmart Inc. In response, company CEO Doug McMillon told employees July 1 that Walmart’s leadership is listening to “many different viewpoints” from its employees and will work “thoughtfully and diligently to figure out the best path forward.”

Most businesses had time to plan an initial statement and response to Roe being overturned, given the draft opinion was leaked in May. But now, behind closed doors, those companies are mulling a mass of questions, including whether to accommodate part-time workers and provide paid sick leave for any travel.

“Governance is lacking a bit in this area, but with the evolution of the past few weeks, maybe that’s the push that they need,” said Laura Gitman, chief operating officer of sustainability nonprofit BSR.

Corporate executives and boards of directors must now plan for what consistent action they will take on reproductive health rights across their business, including responding to thorny investor questions about benefits and political spending, according to environmental, social, and governance (ESG) consultants.

A Slower Approach

Many groups are cataloging the corporate record on abortion access. Don’t Ban Equality, an initiative that emphasizes reproductive health as a workforce and economic issue, has over 500 companies that signed on to the statement.

“Staying silent is very much seen as being in support of one direction, it can be interpreted as reticent support,” said Gitman. At the board level, companies are going to need to put more processes in place for deciding which issues to speak out on and taking positions on them, Gitman said.

Some companies are likely considering if they will come out in support of the Supreme Court’s overturning Roe, if that fits more with their customer base and employees, said Douglas Chia at Soundboard Governance, an independent consulting firm.

“I think it’s predictable that there will be more companies coming out on the pro-choice side in their statements. It’s not going to be completely one-sided,” Chia said.

ESG experts said businesses should consider providing confidential counseling—and ensuring that employees aren’t required to share private information. Some companies are “slowly and quietly” working to provide benefits for abortion access, even if they don’t want to make a public statement about it, Gitman said.

There are also potential legal repercussions to weigh. Some businesses are likely concerned about state legislators cracking down on companies for helping their employees get an abortion elsewhere, Chia said. Meta, for example, said in a statement that it plans to reimburse travel expenses “to the extent permitted by law,” even as it noted the “legal complexities” of doing so.

For many businesses, the “real pressure points,” as well as potential government pushback, rest with how employees will view their actions—including any prospective impact on recruiting efforts, said Chia.

Many businesses coordinate on contentious issues, checking in with one another so that they don’t stick out from the pack, ESG experts said. “There’s definitely a complex game that goes on behind the scenes, that goes on all the time,” said Chia.

Gitman said there’s more coordination among human resources professionals across companies on these issues. Advocates, too, are fostering such intercompany conversations, she said, by encouraging them to, for example, band together to sign onto group letters.

Investors Take Action

Shareholder pressure is expected to rise as investors demand action over reproductive health and see access to abortion as a human capital risk. With a rise in shareholder resolutions, there’s a sense that “if you can’t get it done in government, get the companies to do it,” said Heidi Welsh at Sustainable Investments Institute, a corporate responsibility nonprofit.

Walmart, for example, faced a shareholder proposal about how overturning Roe would impact its employees after the opinion was leaked. Other companies, including Lowe’s Companies Inc., Macy’s Inc., and Progressive Corp., faced similar shareholder proposals asking companies to detail how abortion rights could impact their business and what they planned to do in response.

The investor moves haven’t seen much success, however: the Lowe’s proxy won 32% backing, and a similar proposal for Walmart secured only 13%. The proposals for Macy’s and Progressive didn’t make it to votes because they were withdrawn.

Many businesses also must reconcile inconsistencies in their stance on abortion, corporate ESG consultants said, including contradicting their own statements on abortion rights by donating to anti-abortion lawmakers or candidates.

Previously, companies have been called out for hypocrisy on LGBTQ rights, including over North Carolina’s 2016 ‘bathroom bill’ blocking transgender people from using the bathroom of their choice. Many companies were criticized for publicly opposing the bill when they had donated to Republicans who enacted the legislation. Over 200 CEOs later signed a letter to repeal the law.

There has been a sizable increase in investor support for shareholder resolutions on aligning political spending with company values in the past several years, and some of those proposals have specifically pointed to reproductive health rights.

“The sticky point for companies is that there’s a really big contrast” on how they handle issues including reproductive health benefits and diversity, and how their spending unfolds in the political arena, Welsh said.

To contact the reporter on this story: Clara Hudson at chudson@bloombergindustry.com

To contact the editor responsible for this story: Michael Ferullo at mferullo@bloomberglaw.com, Melissa B. Robinson at mrobinson@bloomberglaw.com