It would be easy to say that the Supreme Court’s decision on Friday has nothing to do with the workplace and therefore presents no employment law issues.
But such an approach would not only be foolish, it would be wrong.
The full impact of the decision will be felt for an entire generation while a full analysis of the decision’s impact will take some more time too (though my partners have done a great job with one here). But it’s apparent from the first few reads of the Court’s decision in Dobbs v. Jackson Women’s Health Organization is that it presents a real challenge for employers and is so disruptive in so many ways both for employers and employees.
First, the decision minimizes (at best) or ignores (at worst) the concept of “stare decisis” which is that the Court’s prior decisions become binding precedent — and therefore have meaning. People can rely on those decisions to predict what will happen next and respect the decision once it gets made. If the Court undermines that concept, it risks becoming exactly like the much maligned National Labor Relations Board. The NLRB is a federal agency that, some would argue, changes its mind depending on how the Board is composed (whether Democrat majority or Republican). For example of such a flip flop, see one of my prior posts about the NLRB here.
This is not a good thing; the Rule of Law depends on people having some faith in the institution itself. If people think the system is rigged to whatever party is in power, then the more likely they will be to minimize its importance or keep fighting until they think the system is in their favor. Stare Decisis provided some measure of comfort to parties and gave employers the opportunity to plan for the future.
Second, in overruling Roe v. Wade, the Court announced a new test to determine what rights should still be kept: If a right is not explicitly mentioned in the Constitution, then it should only be upheld if it is “deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered liberty.”
According to a concurrence from Justice Thomas, that could mean things like same-sex marriage or the right to contraception might be at risk. Again, for employers, that means more changes may happen — changes that employees will expect their employers to do something about.
It’s the first time that an established right has been taken away by this Court in modern times — rights that were taken for granted. What’s next? That’s a huge question mark.
Third, employers are now going to be expected to “take sides” in the issue of abortion. Already, some employers have started to say that they are going to cover the costs for employees in certain states to fly to other states to receive an abortion. Dick’s Sporting Goods was one of the first to come out on Friday to state that explicitly, but there are many others.
For employers, this also means that they should be determining whether they will follow with such an approach if they have workers in states that now ban abortion.
My colleagues and I will have much more on this topic in the upcoming days and weeks.
For now, I appreciate the statement from the American Bar Association President Reggie Turner; as I mentioned earlier, I will be joining the Board of the ABA this August.
The Supreme Court’s decision in Dobbs v. Jackson Women’s Health that overturns Roe v. Wade and Planned Parenthood v. Casey will deny millions of people in our country what has been a protected right for half of a century. In an amicus brief filed in Dobbs v. Jackson Women’s Health Organization, the ABA had urged the Court to uphold Roe v. Wade and its subsequent line of decisions. The brief cited the extensive legal precedent, the irreparable harm that reversing Roe would cause women and the disproportionate effect of a change in the law on women of color.