Last week the United States Supreme Court issued its highly anticipated and controversial decision in Dobbs v. Jackson Women’s Health, overturning Roe v. Wade. Whereas Roe had held for nearly 50 years that the right to an abortion was guaranteed by the U. S. Constitution, Dobbs disagreed, giving the issue back to the states to decide. The resulting patchwork of differing state laws presents employers with an equally diverse and confusing set of issues to confront. It is therefore imperative that employers have the knowledge needed to navigate varying and changing obligations to their employees. For starters, Dobbs raises issues beyond abortion. Its impact may require revisions to workplace benefits, existing policies, and more. For the sake of brevity, this article will focus on the four states where Wessels Sherman maintains offices: Illinois, Minnesota, Wisconsin, and Iowa.

Illinois: is the only state among the four that has a law in place that affirmatively protects the right to an abortion. Therefore, because the Dobbs decision did not determine whether abortion is legal but left that determination to the states, its impact will be minimal under current law in Illinois.

Minnesota: does not provide for a right to an abortion but also does not have a law in place that bans them. Consequently, at least for now Dobbs may not change things in Minnesota where abortion is not illegal. Governor Walz has already stated his intention to call the legislature into a special session to pass a law protecting the right to an abortion. However, it remains to be seen whether such a bill would have sufficient support in the present Minnesota legislature, to become law.

Wisconsin: has an archaic law on the books from the 1800s, purporting to ban abortions; however, it was not being enforced even prior to Roe. Governor Evers tried calling a special session to enact protections to undo that law and replace it with something like Illinois but was unsuccessful in getting buy-in from that state’s legislature. As a result, there are reports of places in Wisconsin that have discontinued providing abortions out of fear that Dobbs may embolden some to begin enforcing the law that provides for fines up to $10,000 and imprisonment.

Iowa: Iowa has no law currently in place that bans nor affirms the right to an abortion. Iowa does have a law on the books that requires a 24-hour waiting period to get an abortion; however, until last week it was deemed unenforceable by an Iowa appellate court ruling in the case of Planned Parenthood v. Kim Reynolds. Governor Reynolds appealed that decision and within hours of the SCOTUS decision in Dobbs, the Iowa Supreme Court followed suit and reversed the appellate court. The result is the 24-hour waiting period law is now enforceable in Iowa. Given this recent decision which Governor Reynolds heralded as a great victory, and given the composition of its legislature, many expect Iowa in coming months to outright ban abortion unless the woman’s health is in jeopardy.

What all this means for employers: for employers with employees in any of these (or other) states, it is important to know the current laws as well as any future changes. Many employers have chosen to address this clearly controversial issue by taking a company position, either pro-life or pro-choice. Others are taking a hands-off approach. Employers will have to determine for themself whether to wade into the morass that is unfolding, including any consequences of their position vis-a-vis their employees, customers, and/or the public. Regardless, there is more to consider beyond the issue of abortion itself. For example, employee benefit plans – insured or self-insured – should be reviewed to determine if coverage offered may now (or in the future) run afoul of various state laws. Additionally, the emerging patchwork of state laws requires a closer look at many workplace policies and handbook provisions that may also create issues that until last week, did not exist. How do existing social media policies or workplace dress codes address pro- or anti-abortion positions employees may communicate through online postings, T-shirts, buttons, etc. at work? While some employee activities are protected under federal labor law as “concerted,” employers do have a right to impose reasonable measures to maintain productivity, safety, and civility in their workplaces.

Businesses susceptible to public protests on their premises should prepare an action plan before pickets show up. Some employers have taken a pro-choice stance in response to Dobbs, by offering to reimburse employees for the cost of traveling to another state where abortion is legal. But will such measures be deemed to violate laws like Texas,’ which makes it illegal to “aid and abet” abortion? It also remains to be seen how employers who take a pro-life stance might conflict with laws protecting religion, or laws in Minnesota and other states that protect employees based on familial status. Additionally, an employee’s abortion, like pregnancy-related information, is confidential medical information under several federal laws.

Bottom line: There will be much to sort out in the wake of such a monumental decision as Dobbs. Based on the strong feelings that exist throughout the country on what must be recognized as a tremendously polarizing issue, we can expect plenty of political activism and litigation for months, probably years to come. Giving the controversial issue of abortion back to the states will play out in each state over time, with vastly different outcomes. Like it or not, employers must stay on top of all of it if they want to stay out of the battles that are almost certain to come.

James B. Sherman is spearheading the emergency response team for Wessels Sherman to help employers respond to the ongoing aftermath of Dobbs. If you have questions, he may be contacted at: 952-746-1700 or jasherman@wesselssherman.com