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Editors note: The following is commentary from Megan McNally, a business attorney and founder of theFBomb Breakfast Club, a peer support community for women founders and business owners.
Abortion is healthcare.
When the Supreme Court released its opinion in Dobbs vs. Jackson Womens Health Organization Friday, the tech community was quick to praise Microsoft, Meta, and other industry leaders for pledging to cover healthcare and travel costs for employees no longer able to access healthcare safely where they live.
But this benefit, like so many corporate actions in the days and weeks after George Floyds murder, is a cheap, disingenuous ploy. And deploying these benefits could be dangerous for employees.
Lets start with the cheap ploy.
What were these tech giants doing when the Senate refused to hold confirmation hearings for the Supreme Court nominee of a sitting President in 2016?
How about when three ultra-conservative nominees were plucked directly from Leonard Leos list to re-shape the Court, even while out of step with the majority of Americans, 62% of whom say they are moderate or liberal in their ideology?
What were they doing between May 2, when the draft Dobbs opinion was leaked, and now?
They were funding all of it. Thats what tech companies were doing.
Amazon, Microsoft, and Googles PACs were among those funding politicians who scored zero on the Human Rights Campaigns Congressional scorecard.
Amazon, Facebook, and T-Mobile were among those funding the Republican Attorneys General Association (RAGA), a group that actively organized the January 6 insurrection.
In 2016, 51.28% of Amazon.coms PACs contributions went to Republican candidates. The company ratcheted up its GOP contributions 242% in 2018.
I could go on, and its hard to have the full picture thanks to dark money. But enough information is in the light to illuminate the robust, active role of Big Tech in shaping Congress and thus federal appointments, law, and funding.
Lets turn to the very dangerous idea that any employee should disclose to their employer that they or a family member are seeking an abortion.
Its important that tech companies offer health plans that cover the full range of human healthcare for every human. Its imperative that employers remove barriers like the cost of travel for accessing healthcare when one cant do so safely where they live.
But its problematic: accessing this particular benefit means the health plan now has a record. If the health plan has a record, the employer does, too. Its especially fraught when you consider growing movements promoting whistle blowing to private citizens by suing doctors or anyone who assists a woman in getting an abortion see Texas and Oklahoma, for example.
While a matrix of health privacy and employment law should theoretically activate to prevent most employers from being able to access and use that information in individual employment related decisions, no one should be fooled into trusting this patchwork legal framework given the precedent now set by Dobbs.
The Dobbs decision, taken with other decisions this 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. In overturning Roe vs. Wade, the Court has eviscerated the very (supposedly) American concept of due process and put all of us on notice regarding the right to privacy.
Writing for the Dobbs majority, Justice Alito said that Roe held that the abortion right, 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 to them of which is mentioned repeatedly), and we now have a majority Court of textualists, one would be foolish not to expect challenges to other rights that have been found within the implied right to privacy, including in the areas of employment and health. And so neither is it foolish to be concerned that accessing abortion through an employer-sponsored health plan will put employees at risk of career-altering bias and discrimination, the risk at which will fall disproportionately to those who have no alternative but to rely on their employer for this care.
If tech leaders really care about human rights, heres what they should do right now:
The U.S. is becoming an increasingly divided country with egregious gaps between the haves and have-nots, and an alarmingly dangerous place for Black, indigenous, and people of color, for women, LGBTQ people, and immigrants.
Tech companies shouldnt be hailed a hero for dropping press releases with performative band-aid solutions to problems they funded. This is a crisis of their own making.
Denying people healthcare means denying them the right to participate fully in society. Thanks Amazon, Facebook, Microsoft et al for underwriting the disaster now unfolding. Forgive me if Im not ready to give you a humanitarian medal.
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