Abortion Access Post-Dobbs: The Power of Private-Sector Labor and Employment Law

by Austin J. Wishart, Notes and Comments Editor, University of Cincinnati Law Review Vol. 91

I. Introduction

The law surrounding reproductive healthcare and rights has been upended in the wake of the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Org.1Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228 (2022). Some states have moved to enact total bans on abortions, while others have acted to enshrine the right to abortion in their constitutions.2Associated Press, Abortion Ruling Prompts Variety of Reactions from States, ABC News (July 30, 2022, 2:17 PM), https://abcnews.go.com/Health/wireStory/abortion-ruling-prompts-variety-reactions-states-87639857. Groups, activists, and politicians from across the political spectrum have lauded the decision as both a moral victory and a return to the federalist principles at the bedrock of this country, while others describe the decision as an extremist bellwether of future threats to rights grounded in substantive due process.3Danielle Cohen, Celebrities and Politicians React to the End of Roe, The CUT (June 26, 2022), https://www.thecut.com/2022/06/celebrities-politicians-reactions-dobb-end-of-roe.html.

Regardless of how one feels about the decision, many have quickly begun to adapt to an uncertain legal landscape. One issue that has arisen post-Dobbs is the role of private-sector labor and employment law in providing reproductive healthcare access in abortion-restrictive jurisdictions.4For the purposes of this article, the discussion section will be limited to the private sector. Public sector labor law implicates many constitutional issues and will not be considered. To what extent can employers provide these benefits? What is the role of organized labor in negotiating for these benefits? To what extent does organized labor prevent employers from unilaterally providing such services? Some employers have pledged to provide travel accommodations to access reproductive healthcare outside of their state of employment.5Clare Duffy & Jennifer Korn, These US Companies will Cover Travel Costs for Employees who need an Abortion, CNN Business (June 27, 2022, 2:34 PM), https://www.cnn.com/2022/06/24/tech/companies-abortion-reaction/index.html. Others have pledged to expand reproductive healthcare coverage to contraceptives and procedures previously uncovered.6Maggie McGrath & Jena McGregor, These are the U.S. Companies Offering Abortion-Related Benefits, Forbes (May 7, 2022, 6:30 AM), https://www.forbes.com/sites/maggiemcgrath/2022/05/07/these-are-the-us-companies-offering-abortion-related-benefits/?sh=7291627976ea. Before diving into those issues, it is necessary to understand the background of how Dobbs came to be.

II. Background

In 1971, the Supreme Court delivered a landmark decision in Roe v. Wade.7Roe v. Wade, 410 U.S. 113 (1971). Offering a tripartite solution to the hotly debated issue of abortion, the Court in Roe balanced the right of the State to regulate the important and legitimate interest in the health of a mother against the right of the individual woman to her bodily autonomy and privacy.8Id. at 154. Twenty years later, the heart of the Roe decision was upheld by the Court in Planned Parenthood v. Casey.9Planned Parenthood v. Casey, 505 U.S. 833 (1992). While the Court opted to depart from the tripartite framework of Roe, Casey affirmed the Constitution’s promise of individual liberty and freedom.10Id. at 901. While other abortion litigation occurred in the years following Casey, these two decisions have become the “twin pillars” of the right to abortion in American jurisprudence and politics.11Deepa Shivaram, Roe Established Abortion Rights. 20 years Later, Casey Paved the way for Restrictions, NPR (May 6, 2022, 5:00 AM), https://www.npr.org/2022/05/06/1096885897/roe-established-abortion-rights-20-years-later-casey-paved-the-way-for-restricti.

The Court in Dobbs v. Jackson Women’s Health Org shattered these pillars. The Court expressly overruled Roe and Casey on the ground that “the Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision.”12Dobbs, 142 S. Ct. at 2242. As such, “the authority to regulate abortion must be returned to the people and their elected representatives.”13Id. at 2279. This returns the states to a pre-Roe state: they may choose to restrict or allow abortion as the voters and representatives wish. As of the time of this article, states have moved to fully criminalize abortion, restrict it to pre-cardiac-cell activity, restrict it to pre-viability, restrict it to a certain trimester, and create frameworks for exceptions in cases of rape, incest, fetal death, and risk for the mother.14State Bans on Abortion Throughout Pregnancy, Guttmacher Institute (Aug. 8, 2022), https://www.guttmacher.org/state-policy/explore/state-policies-later-abortions.

III. Discussion

Of myriad issues that have developed since Dobbs, one broad question is how employers and collective bargaining units can provide reproductive healthcare access to workers in states that criminalize or restrict abortion.

In workplaces that do not have a collective bargaining unit, U.S. employment law is grounded historically in recognizing employers’ broad discretion to act as they see fit.15See, e.g., 1 William Blackstone, Commentaries 513 (1765). Employers are generally free to provide benefits, organize their workplaces, fire workers, and make other administrative decisions, so long as they do not run afoul of state and federal law. In the wake of Dobbs, employers have quickly moved to provide healthcare coverage for reproductive health services and provide lodging, paid time off, and travel benefits for workers who need to travel out of state. This is a straightforward solution and, thus far, state legislatures have not made a concerted effort to restrict employers from doing so. The primacy of employers in U.S. workplaces thus may be a benefit to workers who require speedy access to reproductive healthcare.

This issue becomes further complicated when employees are members of a collective bargaining unit. “When a collective bargaining agreement exists, a company may not unilaterally act with respect to any mandatory subject of bargaining.”16Loral Defense Systems-Akron v. NLRB, 200 F.3d 436, 449 (6th Cir. 1999) (citing NLRB v. Plainville Ready Mix Concrete Co., 44 F.3d 1320, 1325 (6th Cir. 1995)). Where a collective bargaining agreement exists, and workers’ healthcare benefits are implicated by the agreement, employers may feel that they cannot act to provide travel or reproductive healthcare benefits to workers without violating labor law.17See 29 U.S.C.S. § 158(a). These employers may feel that they need to wait until the collective bargaining agreement has expired to include the new benefits in renegotiations.

However, a minor change in benefits that is presented to employees and ratified by their collective bargaining unit may be permissible.18See Szoke v. UPS of Am., Inc., 2006 U.S. Dist. LEXIS 69325, *18 (N.D. Ohio). Where an employer makes a minor change to employment benefits during the course of a collective bargaining agreement, and the collective bargaining representatives do not object to that change, that change can be supported as legal and the result of collective bargaining.19Id. If an employer is worried that they cannot provide reproductive healthcare or travel benefits, they may be able to adopt a resolution to provide such benefits, have those benefits ratified by the bargaining unit, and then provide the benefits to workers.

Further, U.S. labor law provides an exact procedure for employers and collective bargaining units to modify their collective bargaining agreement if the parties are concerned that the quick route above would leave either party vulnerable to liability. Under the National Labor Relations Act, a party may modify the terms of a collective bargaining agreement while the contract is in effect if they: serve a written notice to the other party sixty days prior to the contract’s expiration or the date of proposed modification, offer to meet with the other party to negotiate, notify the Federal Mediation and Conciliation Service within thirty days of the notice being sent, and continue operating under the terms and conditions of the existing contract in the meantime.2029 U.S.C.S. § 158(d)(1)-(4).

Finally, employers and collective bargaining units may negotiate for reproductive healthcare benefits at the bargaining table. Parties are obligated to negotiate all “terms and conditions of employment” when they form or renegotiate a contract under the National Labor Relations Act.2129 U.S.C.S. § 158(d). The parties are free to negotiate over terms to provide reproductive healthcare benefits or extra PTO days to travel out of state. Like the employer in the non-collective bargaining workplace, this is a simple solution if the employer and bargaining unit are aligned in their desire to provide benefits.

IV. Conclusion

Dobbs has touched the lives of every U.S. citizen and will have unknowable ripples in nearly all aspects of the law. Private sector labor and employment law is now confronted with the question of how employers and collective bargaining units can adequately provide access to reproductive healthcare for workers. While employers and bargaining representatives must tread carefully in these uncharted waters, they do have precedent to rely on if they decide to provide healthcare coverage for reproductive health services, provide lodging, PTO, and travel benefits for workers who need to travel out of state, and the workers ratify that decision. They are also free to negotiate for those benefits. In either case, employers and employees can work together to provide access to reproductive healthcare in the wake of Dobbs.

Cover Photo by Chevanon Photography on Pexels

Author

  • Austin J. Wishart is a 3L and Notes & Comments Editor at the University of Cincinnati Law Review. Austin has a deep passion for labor and employment law. This passion can be seen in his forthcoming Note, "The Connick / Garcetti Split: Is Public Employee Association a Matter of Public Concern?" and his various labor law focused blog articles. Austin aspires to represent public and private sector unions and employees after graduation.

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