Will the Dobbs decision bring political as well as legal risk?

The Supreme Court's decision in Dobbs v. Jackson Women's Health Organization triggered many changes to state laws, leaving employers scrambling to keep up. Pending legislation in many states regarding abortion, and when it can be performed, if at all, promises to create even more confusion for health care providers, insurers, employers and employees as to what constitutes legal or illegal acts in the provision of women's healthcare, including treatment of miscarriages, elective abortions and fertility services.

Quickly in response, some employers have publicly announced new health plan benefits that include coverage of travel costs when needed to obtain certain procedures. However, it is quite possible that the legality of such benefits could be subject to private challenges by individuals, organizations and state and federal legislators who seek strict enforcement of state law restrictions on abortion.  

Private lawsuits, funded by interest groups, are a dynamic phenomenon that chief legal officers cannot ignore. These lawsuits may seek damages, of course, but another goal is to gain access to documents – documents that can be used in political discourse. In such "lawfare," the civil discovery process can be used to expose a company's practices and impact public opinion, ultimately causing economic harm to the business. Lawfare can be waged by groups that span the political spectrum with respect to any hot-button issue. It seems likely that companies trying to navigate new state requirements regarding abortion will be a target for such suits. In such lawsuits, companies can be damaged by the accusation that the corporation acted in order to oppose a state's policies, even if the company acted within the law.    

Companies could face lawsuits in both state and federal courts under numerous creative legal theories, which may even include private civil RICO suits (brought by private individual plaintiffs who claim to have been injured by a violation of racketeering activity, such as human trafficking, under 18 U.S.C. § 1964(c)); mail or wire fraud (18 U.S.C. §§ 1341, 1343); or various state laws that provide a private cause of action for aiding and abetting or assisting with obtaining an abortion (e.g., Texas Heartbeat Act, SB 8 § 171.208(a)(2) and Texas Civ. Stat. art. 4512.2.).

Congressional and state legislative inquiries will pose an increasing risk to companies. Demands for documents from Congress create additional risks to companies, especially those in the throes of litigation. In legislative inquiries, traditional privileges such as attorney-client may not apply.  Legislatures publicly issue letters to companies they suspect to be skirting federal and state laws, demanding that internal documents relating to companies' policies be made public. Here, as with lawfare, a key goal of the inquiry is to turn public opinion against such companies, or use the target company to enhance a political argument. CEOs can find themselves in the witness chair at a hearing not necessarily for a company's malfeasance, but for its opposition to state policy.   

Legislative demands for documents frequently grant as little as two weeks to produce. Companies already facing litigation could find themselves in a frenzied period of risk when complying with such demands. In anticipation of future legal challenges, employers need to undertake careful legal and risk analyses when adopting policies concerning reproductive services. At a minimum, an employer needs to obtain a thorough analysis of current state law, and an examination of the company's policies, and employees' conduct, towards such laws.  Using a skilled eye, a prudent CEO can see around corners and prepare for both creative private suits and congressional inquiries. To paraphrase an old saying, "You may not be interested in politics, but politics is interested in you."