Please note that any opinions expressed are those of the author alone and do not represent any position of the State Bar of Wisconsin or any State Bar section.
Employers and employees all over Wisconsin are scrambling to determine the extent that lack of in-state access to legal abortions will impact the post-Dobbs1workplace.
At first blush, the difference between obtaining an out-of-state abortion and obtaining a formerly-legal, in-state abortion may not seem stark. In either instance, a pregnant individual must take time off work, travel to a clinic, and receive medical treatment. However, obtaining an out-of-state abortion generally requires an individual to travel greater distances, incur greater expense, and take more time away from work.
The logistical complications that attend out-of-state travel could mean that it takes longer to find and afford an abortion. Because of this, access could occur later in gestation, perhaps just outside the narrow window of time abortion is permitted. That often requires a higher cost, and therefore a greater barrier to access for individuals with low-paying jobs.
In other words, in a post-Dobbs workplace, many people may not be able to obtain an abortion simply because they cannot afford one.
Financial concerns are the most common reason for a person to need an abortion.2 Of course, the awful irony is that giving birth to and raising a child is far more expensive than obtaining an out-of-state abortion. According to the most recent data from the U.S. Department of Agriculture, the average annual cost in 2020 of caring for a child was $12,980 per child, totaling up to $233,610 over the child’s life. Factoring in inflation, this equates to $284,570 over the course of the child’s life. Giving birth to and raising a child also comes with other costs to working mothers: systemic bias, lack of paid maternity leave, gaps in employment, and barriers to completing high levels of education.
On the other hand, unlike 50 years ago, women now make up half of the workforce. Some employers are rising to the occasion to help make abortion more accessible to employees.
This post explores the options Wisconsin employees are left with after the Dobbs decision decimated access to safe and legal abortions for many, and how the working world may adapt to this new normal.
Motherhood: A Systemic Barrier to Equality
Having access to abortion has a direct and measurable impact on women’s equality in the workplace. Lack of access will likely be felt by both women and their employers.
Post-Dobbs, more individuals will likely carry pregnancies to term and give birth to children. While it takes two to make a baby, the opportunity cost of that creation falls disproportionally to the party that bears that child. Studies show that abortion legalization, in and of itself, helped to close the equality gaps between individuals who can become pregnant, and those who are equally responsible for the pregnancy but do not bear the maternal load before or after the birth.3
It is no secret that on average, women earn less money than men for the same work.4 Since many mothers in Wisconsin do not have access to paid maternity leave, and household labor is almost always unpaid labor that falls disproportionately on a mother’s shoulders, motherhood generally has a negative impact on a mother’s career and long-term earnings. Pew Research Center data shows that mothers took more time off work than fathers for the birth or adoption of a child, and that they were twice as likely to say that taking this time off negatively impacted their career or job.5
The effects of motherhood on women’s employment do not stop after maternity leave. Overall, more mothers than fathers felt the need to reduce their work hours or turn down a promotion because of parenting responsibilities.6 One in five mothers surveyed said that they were passed over for an important assignment or promotion, and 27% of mothers said that they were treated as though they were not committed to their work.7
The Brief for Economists as Amici Curiae Supporting Respondents filed in support of the Jackson Women’s Health Organization in the Dobbs case points to several studies showing that abortion legalization “had large effects on women’s education, labor force participation, occupations, and earnings.”8 These studies found that the effects of abortion legalization in these economic areas has the most profound impact on Black women.9 The Brief highlighted that women who obtained legal abortions saw increased salaries later in life, were nearly 20% more likely to finish college, and nearly 40% more likely to enter a professional occupation.10
An Out-Of-State Abortion: Now a Decision Between Employee and Employer
Now more than ever, individuals’ access to abortion is tied to how much money they make and whether they are able to take time off work. A Wisconsin citizen who wishes to obtain an abortion must now travel out of state to receive care. According to the Pew Research Center, before the 1973 Roe v. Wade decision, 41% of all abortions were out-of-state abortions – meaning that the patient obtained the abortion in a state that was not their state of residency. In 1974, just one year after the federal legalization of abortion, that proportion dropped to 11%. Nearly 50 years later in 2019, only 9.3% of all abortions were performed on women in states other than their home state. Now, after the Dobbs v. Jackson decision, abortion clinics in states where abortion is still legal are anticipating an increase in out-of-state patients seeking abortion care.11
Several companies have promised to provide expenses for people traveling out of state to obtain an abortion, including JPMorgan, Conde Nast, Dicks Sporting Goods, Amazon, Paramount, Warner Bros Discovery, Disney, Netflix, Sony, Comcast, among others.12 Yet, even though these are large companies, the practice is not widespread – a survey of 1,003 human resources professionals showed that 95% of organizations did not plan to offer travel expense benefits, outside of a health savings account, to employees who needed to travel out of state to access an abortion.13 Only 32% of companies surveyed offer paid time off for access to reproductive health care.14
In order to access workplace sponsored programs that provide travel expenses for abortion care, a pregnant person would need to tell her employer that they are seeking an abortion. This could be a barrier to obtaining care all on its own, and comes with many new implications that will change the face of the workplace.
In Wisconsin, it is illegal for an employer to discriminate against an employee for any pregnancy, childbirth, maternity leave, or related medical condition.15 The Wisconsin Department of Workforce Development’s Pregnancy or Childbirth webpage asserts that it is also illegal for a Wisconsin employer to discriminate against its employee on the basis of terminating a pregnancy. An abortion-based sex discrimination case has traditionally been exceedingly rare, quite likely because, before the Dobbs decision, most employers never would have known that their employee was seeking an abortion. That employee probably would have called in sick for one or two days, but now they must apply for funds for an out-of-state trip and likely take more time off.
In revealing to their employer a plan to get an abortion, an employee gives their employer pregnancy-related information that the employer otherwise would not have had and could use to discriminate against them. That employee may incidentally reveal further sensitive information about themselves. For instance, the employee may reveal their marital status, their identity as a gender-nonconforming person, their religious beliefs, or a disability that complicates pregnancy, as it relates to a decision to terminate pregnancy. While the purpose of abortion stipends is altruistic, if not carefully implemented, they could lead to supervisors gaining access to protected class information that they otherwise would not have had, which could be the basis for a discrimination claim in the future.
The implications do not stop there. One established method to prove pregnancy discrimination against a new mother is to show that their employer was willing to accommodate another employee’s medical leave but not a new mother’s maternity leave. If an employer offers travel stipends for pregnant employees to travel out of state and receive an abortion, could a nonpregnant employee now assert that he is entitled to similar benefits to travel out of state for a medical procedure? Would the number of times that an employee could travel out of state for an abortion be limited by their employer? Or could the possibility of these accusations keep businesses from offering such stipends altogether?
What Lies Ahead
An individual’s access to abortion is now tied to how much money they make and whether they are able to take time off work.
In Wisconsin, where abortion is now illegal, employers should prepare to support their employees whether they choose to become a parent or travel out-of-state to receive an abortion. To avoid the pitfalls that might come with the extra knowledge about employees which could serve as the basis for discrimination claims – such as pregnancy status, transgender status, religious beliefs, disability status, and marital status, employers should implement robust training policies that will keep knowledge on a need-to-know basis and curtail any discriminatory or retaliatory actions in response.
This article was originally published on the State Bar of Wisconsin’s Labor & Employment Law Section Blog. Visit the State Bar sections or the Labor & Employment Law Section webpages to learn more about the benefits of section membership.
1 Dobbs v. Jackson Women’s Health Organization, 142 S. Ct. 2228 (2022).
2 M Antonia Briggs, Heather Gould, and Diana Greene Foster, “Understanding Why Women Seek Abortions in the U.S.,” BMC Women’s Health (July 5, 2013) (40% of women surveyed cited financial reasons as one of the reasons that they obtained an abortion).
3 Brief for Economists as Amici Curiae Supporting Respondents, at 13, Dobbs v. Jackson Women’s Health Organization, 142 S. Ct. 2228 (2022) (No. 19-1392) (citing Kelly Jones, “At a Crossroads: The Impact of Abortion Access on Future Economic Outcomes,” American University Working Paper, 2021); David E. Kalist, “Abortion and Female Labor Force Participation: Evidence Prior to Roe v. Wade,” 25 J. of Lab. Research 503, 510 (2004); Ali Abboud, “The Impact of Early Fertility Shocks on Women’s Fertility and Labor Market Outcomes,” Nov. 22, 2019; Jason M. Lindo et al., “Legal Access to Reproductive Control Technology, Women’s Education, and Earnings Approaching Retirement,” 110 AEA Papers & Proc. 231, 234 (2020)).
4 Amanda Barrioso and Anna Brown, Gender Pay Gap in U.S. Held Steady in 2020, Pew Research Center, May 25, 2021.
5 Barrioso and Brown, supra note 4.
6 Barrioso and Brown, supra note 4.
7 Barrioso and Brown, supra note 4.
8 See supra note 3.
9 Id. (citing Kalist; Lindo et al.; and Jones).
11Danielle Kaeding, “Out-Of-State Abortion Providers Prepare to Help Wisconsin Patients After Supreme Court Overturns Roe,” Wisconsin Public Radio, June 28, 2022.
12 Stephen Miller, Companies Are Announcing Abortion-Travel Benefits Following Dobbs Decision, SHRM.org, June 27, 2022.
13 Stephen Miller, Employers Prepare Benefits and Policy Responses to Abortion Ruling, SHRM Survey Finds, SHRM.org, June 24, 2022.
15 Wis. Stat. § 111.36(1)(c).