The famous Russian dolls, matryoshka as they are called in Russia, are nesting dolls one inside the other, often depicting stylized women with the smallest doll as a baby. As Yelena Titova, director of the All-Russian Museum of Decorative, Applied and Folk Art in Moscow, noted, they are also a potent symbol of fertility: “For all Russians the matryoshka is obviously Matryona, the embodiment of woman’s health, fertility, a wonderful female disposition and a symbol of the family.”Footnote 1 The chapters in this part reveal a similar nesting structure of public and private law in the law of reproduction and fertility. Private law is often called on to fill some gaps in public law, which sometimes causes the public law to itself change either to foster or negate that gap-filling and so on and so forth. But this project is heavily dynamic; it is as though the matryoshka dolls are not only dancing alongside one another but growing and shrinking and reconfiguring their order as we see changes in high-level public law – such as the 2022 decision in Dobbs v. Jackson Women’s Health Organization that effectively ended federal constitutional protection for abortion.Footnote 2 But while some of this re-ordering and gap-filling is possible, as the chapters in this part show the result is far from a perfect whole – some dolls don’t fit, some dolls end up empty, and rarely does it resemble the matryoshka we had before the public law changed.
Valarie K. Blake and Elizabeth Y. McCuskey’s chapter (Chapter 10), “Employer-Sponsored Abortion Coverage: Private Law’s Role in Reproductive Freedom,” shows how in the wake of Dobbs the underappreciated reality is that private employers have ended up as some of the chief policymakers on abortion access in America through their coverage decisions as part of employer-sponsored health insurance. They trace a complicated matryoshka structure – within the public law question of abortion as a constitutional right nests the public law question of whether state insurance mandates require the coverage of abortion; but within that “doll,” because of the operation of another piece of public law (the Employee Retirement Income Security Act of 1974 [ERISA]), we get the preemption of state insurance mandates such that decisions on abortion coverage are now devolved back to employers and to private law. The end result is that “[t]hat private law grants employers nearly total discretion on abortion coverage,” but this “illustrates the limitations on private law’s efficacy in this role,” and indeed the “agency costs involved in employers’ power over employee reproduction ultimately exacerbate existing power differentials and inequities, without assurances that employers will act in their employees’ interests.”
Myrisha Lewis’ chapter (Chapter 11), “Reproductive Innovation and Reproductive Exceptionalism: How Private Health Insurance Coverage of Fertility Treatment Complements Hostile Governmental Action and Expands Access to Assisted Reproduction in the United States,” continues the consideration of health insurance but shifts the focus from abortion to family formation through reproductive technologies. She catalogs an uneven mix of public law and private choice across the United States: Some states have passed insurance mandates requiring the coverage of reproductive technologies to some extent but many have not, and even those that have done so, due to ERISA preemption, end up with self-insured employers not governed by the insurance mandates. She notes that “[a]mongst companies with over 500 employees, as of 2020, 27% of those employers offer IVF coverage, up from 24% in 2015 and 11% offer egg freezing, an increase from 2015, when only 5% of those companies covered egg freezing.” But finding the right employers remains a challenge for many employees, who rely not only on lists created by fertility patients but also Reddit threads and even TikTok videos! She also explores how leaving the decision whether and to what extent to cover these services to employers produces job lock and also puts patients facing layoffs in a precarious position, given that services like IVF often stretch over many years.
In her chapter (Chapter 12), “Business Responses to Dobbs: The Return to a ‘Reproductive Rights’ Approach, and Suspicions around Corporate Care,” Asees Bhasin applies a critical reproductive justice lens to the way in which corporate decisions have filled in gaps post-Dobbs. She tracks corporate social responsibility type responses, such as donations to reproductive rights organizations, travel stipends or reimbursement for travel to get an abortion out of state, bail funds for persons arrested protesting anti-abortion measures, but also notes that private law has left us in a place where these “initiatives lack enforceability and teeth and are left to be shaped by the corporation itself.” While such moves by corporations are desirable, she also emphasizes “that the vision of the [Reproductive Justice] movement is at odds with the profit-maximization-centered approach of corporations” and calls out the neoliberal worldview as relying on “institutional supports and business-friendly measures taken by the state, while simultaneously promoting the idea that government should be restrained in almost all other ways, including in the provision of welfare and social services.” In arguing that private law has allowed corporations to fail to live up to objectives of the reproductive justice movement, she points to the wide discretion in designing employer-sponsored health insurance packages, the failure to give paid parental leave or adequately support working parents, and the decision to schedule work hours or classify workers as independent contractors rather than employees and thus deprive them of much-needed benefits. Far from filling the gap left by Dobbs, Bhasin sees private law as the problem in many such instances.
Finally, Thomas W. Williams’ chapter (Chapter 13), “Privatizing the Creation of Equity in Women’s Health,” looks at the gaps and opportunities that private law (especially corporate law) has made for Femtech, technologies aimed at promoting women’s health with a special focus on the reproductive needs of women. Williams argues that “FemTech companies extract value from gaps in existing markets serving women’s health needs,” and that these “gaps are often in part due to policy choices of government and policy makers,” such as the failure to prioritize funding research into women’s health – he gives the example of research into menopause, and research connecting the fallopian tube to ovarian cancer. But Femtech companies face the challenge of balancing two (or in some instances) more purposes: “(i) bettering the overall picture of women’s health and, (ii) ensuring that the company itself remains a fiscally viable going concern.” The chapter explores the way corporate actors use contract law to help adjust existing corporate structures to this reality. At the same time, it acknowledges the imperfect way that private law and private ordering solve for the dual-purposes; in particular, how the entry of private equity and venture capital into the Femtech space may upset the apple cart.
After reading these chapters, one is left with two competing visions as to the legal matryoshka. The first is a system running as intended, where private law interventions act as a sort of shock absorber to changes or gaps in the public law and enable innovation and entrepreneurship and a hundred flowers blooming. The second is a system, perhaps also running as intended (depending on one’s cynicism), where public law has passed the buck as to abortion, fertility, and other reproductive needs. In this later vision, family formation and women’s health now operate under the logic of the market such that those pushing for change need to do so in a way that centers what market actors care about. While these chapters are mixed in their view, overall I read them as leaning toward the second vision and yearning for more not less public law intervention.
10.1 Introduction
Access to abortion care depends largely on public law, with federal and state governments controlling the legality and regulation of services and providers, and courts articulating individual reproductive rights. Dobbs v. Jackson Women’s Health OrganizationFootnote 1 upended the right to abortion, casting public-law governance of abortion rights into turmoil. This chapter explores one context in which private law plays a limited but remarkable role in access to abortion care: employer-sponsored insurance (ESI). Employers provide health insurance for over half of reproductive-aged Americans, controlling the financial access to abortion care for many. The private laws of insurance regulation grant capacious discretion to employers to offer or not offer abortion coverage, regardless of what public law prohibits or requires.
Employers’ own interests in when and whether their employees reproduce inform how they exercise this discretion granted by private law. As we explain below, by covering abortion employers can avoid some of the much greater health plan and workforce costs of pregnancy and birth. But employers may instead prioritize their own religious objections to abortion and refuse coverage. Either way, the employer acts on its own interest. We turn to concepts of agency to assess what duties employers may owe in their conflicted role. In the regular course of business, employers act as principals and their employees as agents. But as arrangers of health benefits, the roles reverse: Employers act on their employees’ behalf, and so ought to serve their employees’ interests in accessing health care. If guided by agency principles, employers should include coverage for abortion services in their health plans, to the extent the law allows.
If public law continues to erode access to abortion care, ESI creates a space for private law to support access, especially if employers take seriously their responsibilities as health care funders for their employees. That private law grants employers nearly total discretion on abortion coverage, however, illustrates the limitations on private law’s efficacy in this role. And the agency costs involved in employers’ power over employee reproduction ultimately exacerbate existing power differentials and inequities, without assurances that employers will act in their employees’ interests.
10.2 Private Law Grants Employers Discretion over Abortion Benefits
Even in states where abortion remains legal after Dobbs, the cost of the procedure poses a significant obstacle to access. In 2022, around 11 percent of Americans lacked cash, savings, credit card balances, or other finances to pay a US$400 bill.Footnote 2 The average price for abortion services surpasses this at US$500–US$2,000,Footnote 3 and after Dobbs, travel time required for abortion care has quadrupled,Footnote 4 adding expenses for travel, lodging, and lost wages to the cost of the procedure.
Few can afford these costs without insurance.
Health insurance coverage practically determines people’s access to abortion care, like other health care services.Footnote 5 For the majority of Americans who have commercial insurance, a dense mix of state insurance law, the Affordable Care Act (ACA), and antidiscrimination laws guide the coverage decisions and administration of their plans.Footnote 6 Most reproductive-age Americans rely on ESI for coverage.Footnote 7 This effectively gives employers a gatekeeping role in determining what health care services will receive funding.Footnote 8
ESIs are regulated primarily by the ACA and the Employee Retirement Income Security Act of 1974 (ERISA). But ERISA more de-regulates, through sweeping preemption of state law, and comparatively sparse federal requirements for what ESI must cover.Footnote 9 Similarly, the ACA incentivizes large employers to offer health benefits by taxing their choice not to and imposes comparatively lighter coverage requirements for ESI plans than on individual insurance.Footnote 10
Employers have designed plans that exclude certain services from coverage to save money. State (and occasionally federal) legislators have enacted piecemeal mandates for insurance coverage of certain services. Insurance companies must comply with state mandates, but ERISA preemption exempts employers who structure their health plans as “self-funded” plans from compliance.Footnote 11 ERISA itself imposes few coverage requirements. ERISA does not require employers to cover maternity or hospitalization; it merely requires that if an employer plan chooses to cover those two services, then it must cover hospitalization for up to forty-eight hours after vaginal delivery.Footnote 12
ERISA does not require that employer plans cover maternity care at all. That requirement comes from the Pregnancy Discrimination Act (PDA) of 1978, which applies only to employers with fifteen or more employees,Footnote 13 while also allowing employers with fifty or more employees to exclude labor and delivery coverage for employees’ dependents.Footnote 14
Even as the ACA, ERISA, and other laws add bits and pieces to employer plan requirements, the forces of abortion exceptionalism leave employers with nearly unfettered discretion on whether to include abortion in the coverage of their employee benefit plans.Footnote 15 ERISA and the ACA expressly preserve employer plans’ discretion to exclude abortion from coverage.Footnote 16 The PDA explicitly states that employers are not required to offer coverage for abortions.Footnote 17
State laws vary, with some requiring that health insurance cover abortion, and others prohibiting it.Footnote 18 ERISA’s preemption loophole for self-funded plans, however, preserves employers’ discretion to cover or refuse to cover abortion despite state law.Footnote 19 In states with abortion insurance mandates or prohibitions, employers may purchase policies from insurers who must comply with these rules, or employers may choose to self-fund their plans and avoid these rules. Thus, ERISA preempts states from enforcing antiabortion laws against those self-funded plans that cover abortion and related travel expenses in the wake of Dobbs.Footnote 20
The private law of abortion coverage is more flexible than its public law counterparts, and somewhat less exceptionalized. Public insurance programs have long operated under the Hyde Amendment’s prohibition on the use of federal funds to cover abortion services except when necessary to save the pregnant person’s life,Footnote 21 restricting coverage options in Medicare and Title X. State Medicaid programs may choose to cover abortion in more circumstances but must do so solely with state funds.Footnote 22 Similarly, the federal government as an employer is subject to the Hyde Amendment restrictions in its employee benefit plans.Footnote 23 State governments as employers have the option of covering abortion, or not.
The ACA, PDA, and ERISA operate to give employers ultimate flexibility in deciding whether to cover abortion.
10.3 Private Law’s Effects on Access to Abortion
Abortion rights are largely viewed through the lens of public law, specifically the extent to which the Constitution permits government intrusion into individual reproductive choices. Yet finance – a critical facet of access to abortion, and most other health care – falls largely to employers and the promises they make to their employees, guided by private law.Footnote 24
The reliance on private law to govern the major source of funding for abortion has some advantages to leverage and pitfalls to avoid if the goal is to secure safe and affordable abortions for those who most need it in an era of eroding constitutional rights to abortion.
10.3.1 Benefits and Limitations of Relying on Private Law
After Dobbs, many states limited, banned, or criminalized abortions.Footnote 25 Other states passed laws expanding protections for abortion access. In the chaos that Dobbs engendered, the reactions of employers through their employee health plans illustrate the main benefits and limitations of private law as bulwark against the erosion of reproductive rights.
Employers who covered abortion services were forced to examine impacts of Dobbs and state legislation on the benefits offered for their current plan year. In states that outlawed or further curtailed abortion after Dobbs, some employers who fund abortions may have been tempted to shift course. Private law offers temporary protections here in the form of the contractual commitments employers make to their employees for the given benefit year.
Employers who already elected to cover some form of abortion for employees searched for ways to reconcile these benefit promises with the post-Dobbs waves of restrictive state legislation.Footnote 26 Many employers found providers out-of-state willing to perform services for their employees for no additional cost-sharing.
Many employers, especially large private sector ones, included provisions for travel coverage and other expenses to offset additional costs patients face to access abortions.Footnote 27 Some government employers followed suit.Footnote 28 Most companies are reimbursing travel under their employer health plans, much as they reimburse travel for specialty health services like cancer treatments that are only available from some specialty sites.Footnote 29 After international law firm Sidley Austin promised reimbursement for out-of-state abortion travel costs to employees of its Dallas and Houston offices, Texas legislators accused the firm of violating state laws prohibiting the “aiding and abetting” of abortions.Footnote 30
Private law also protects employers who wish to cover abortion care going forward.
ERISA enables self-funded employer benefit plans to help people access abortion, even across state lines.Footnote 31 Employers with the will can design their plans to cover abortion services received out-of-state, and to safeguard employee information from states where the act of receiving abortion care in or beyond the state border is illegal. Given the national reach of many large employers, and the number of people they cover through health plans, employers have a powerful tool to secure access to abortion for large numbers of people.
For lawmakers who wish to limit access to abortion, the private law of ESI requires them to do battle on an entirely different legal terrain, with powerful corporations and the entrenched decades-old behemoth that is ERISA. Many public laws treat abortion exceptionally, but ERISA is abortion-blind. Its safeguards apply equally to employers funding abortions as any other employer health benefit, forcing legislatures to attack a law with broad general applicability. In an era of eroding abortion rights, the private law supporting employer benefits has become an unanticipated safe haven.
Still, there are significant limits to this privatized model of coverage, from the perspective of advancing reproductive rights, access, and justice. The private funding model of ESI does not construct a durable or widespread protection for abortion funding, and it excludes many of the people most in need of financial assistance.
The very same forces of private law that can protect abortion benefits so too can be used to undermine and evade state laws that protect abortion access and mandate coverage. For self-funded plans, ERISA preempts the enforcement of a state mandate for abortion coverage in the same way that it preempts the enforcement of a prohibition for such coverage. Ten percent of employees work for employers whose plans expressly exclude abortion coverage in some (6 percent) or all (4 percent) circumstances.Footnote 32 Large companies, and self-funded plans and private nonprofits (often religiously affiliated organizations) are all more likely to exclude or limit abortions.Footnote 33 Even for workers with plans that do not expressly exclude abortions, many face limits on access with respect to gestational age, method, and caps on covered services per employee.Footnote 34
Similarly, private law does nothing for the 20 million federal workers, veterans, and active-duty military and their dependents who do not receive abortion coverage under their employer plans owing to the Hyde Amendment.Footnote 35
Private law also does little for low-income women and women of color who are most likely to seek abortions,Footnote 36 more likely to be on Medicaid, and less likely to receive insurance through their work.Footnote 37 Medicaid is a workhorse for funding reproductive care generally in this country, paying for more than four in ten births nationwide and a majority of all births in some states.Footnote 38 Yet thirty-three states have enacted their own Hyde-style amendments barring Medicaid coverage for abortions.Footnote 39 Many of those states have higher than average maternal morbidity and mortality rates, with Black women bearing the greatest burden.Footnote 40 Those most in need of help accessing abortion care are left to the public funding programs that most frequently refuse to cover abortion.Footnote 41
The abortion-access gains via ESI thus are not equitably distributed. Nor are they durable. Employers decide on their plans annually and can change any aspect from year to year. A firm that considers abortion coverage to be in its political and/or financial self-interest one year may act differently the next.
10.3.2 Employers as Agents for Reproductive Choice
As the dust settles on Dobbs, employers will face external pressures from various groups to fund or not to fund abortions. How should employers weigh these many competing interests as they craft benefit plans and abortion coverage going forward?
Health law and policy scholars have proposed the principal–agent relationship as a theoretical framework to explore the inherent obligations and conflicts within the employer–employee relationship and the acquisition of health benefits and, moreover, when these relationships demand that public law step in.Footnote 42 In employment law, the principal–agency relationship views employees as agents of the principal employer, serving the employer’s best interests. In health benefits, this is reversed. The employee engages her employer “to perform the service of purchasing and administering a health insurance plan on [her] behalf.”28
The principal–agent concept holds as a broad construct, though the employee benefits relationship does not capture all elements of traditional agency law.Footnote 43 Employees do not necessarily have control over their employer-agent in the health benefits scenario, as employers have already negotiated and secured their benefit plans before they hire new employees.Footnote 44 Most privately employed people likewise have little say in or even knowledge of their employers’ benefit plan negotiations until after the plans are set. Dobbs’ massive disruption may sharpen individuals’ awareness of the degree to which their current plans cover reproductive services, including abortion.
The principal–agent concept applied to employer health benefits reveals many agency costs, or times when the agent employer’s interests conflict with the principal employees. Most obviously, employers are financially incentivized to offer the least generous health benefits possible to their employees.Footnote 45 These agency costs have been used to explain the shortcomings of the ESI model from health policy perspectives.Footnote 46 Agency costs sometimes make employer benefits models unworkable, demanding public law stand in for the failures of private law.Footnote 47 ERISA, the Consolidated Omnibus Budget Reconciliation Act (COBRA), the Americans with Disabilities Act, and finally the ACA all can be understood as times where public law was deployed to patch failings of private law. This piecemeal patching faces an uphill battle correcting the fundamental design flaw that social policy relies on employers to secure access to care for working Americans and their dependents, but employers primarily serve their own business interests.Footnote 48
What does the principal–agent concept instruct for employers as keepers of abortion benefits in an increasingly fraught era of reproductive justice? Counter-intuitively, private law may impose a higher duty on employers than the government imposes on state actors when it comes to rights to abortion. Governmental actors who forbid or require abortion coverage through public law owe no formal duties to the constituents impacted by their decisions, apart from democratic accountability. Roe’s framework recognized a “compelling governmental interest” in fetal protection, even when in tension with protecting the pregnant person,Footnote 49 and Dobbs only minimized the level of scrutiny applied to government restrictions on abortion.
But private employers’ negotiation of health care benefits implicates duties owed directly to the beneficiaries, including persons who are or may become pregnant. If employers are to act as agents in the best interests of their principal employees in designing their health plans, they ought to cover abortion fully and to the greatest extent permitted by law, including offering abortion benefits out-of-state and with travel support where needed. Reproductive justice demands that principals (employees and other plan beneficiaries) have control over their reproductive potential, including the right not to have a child,Footnote 50 and concepts of bodily autonomy and informed consent further underscore this interest.Footnote 51 Full access to abortion coverage furthers the individual’s health interests, as well as the social, personal, and economic consequences that flow from pregnancy, birth, and child-rearing.
The principal–agent concept also reminds employers that their fiduciary obligations flow to employees and dependents when it comes to health benefits. In this role, employers’ duties are not to the public, state or federal lawmakers, their customers, or their shareholders. Nor are they duties owed to fetuses as potential future plan beneficiaries, distinguishing employers’ role from state actors regulating abortion. Courts since Roe have recognized a compelling governmental interest in protecting potential life if the government chooses to deploy public law for this purpose. But the private principal–agent relationship is a fiduciary one, whose formation typically assumes some amount of agreement and commitment between already-existing parties.Footnote 52 Stretching the concept of principal–agent in health benefits to encompass the hypothetical future unborn would have implications for abortion, as well as infertility care and fetal therapies, and would likely strain the doctrine in ways that are beyond the scope of this chapter.
Employers do need to serve all their employees in their benefits design, as well as nonemployee beneficiaries. This has been a central challenge for employers in navigating this agency relationship in the past, as employees may each be owed a fiduciary duty but may want very different things from their health benefits.Footnote 53 While some may argue that abortion coverage would serve some employees but not others, this neglects to consider fully the importance of reproductive freedom as an individual right to decide for oneself. With that in mind, no single employee or employee interest group ought to be able to block access to this care simply because it is not in their own interests. The fiduciary interest is owed to all beneficiaries. This necessitates that beneficiaries individually have the right to choose for themselves, and so the benefit of abortion must be available to all, even if some do not want it or do not want it covered for others.
While the many regulatory laws governing employer benefit plans suggest broad discretion of employers with respect to abortion, the principal–agent framework directs employers to do what is in the interests of their employees. The concept of employer as agent of its employees suggests a potential limitation on employers’ discretion to exclude abortion coverage and perhaps even a duty to include abortion coverage.
10.4 Employer Benefits and Reproductive Autonomy: An Uncomfortable Marriage
Private law enables employers to fund abortions and arguably imposes duties to do so, even in states where that decision will be met with increasing hostility. Yet, there are reasons to temper the enthusiasm for private law in this role. Employer control over reproduction is historically and existentially fraughtFootnote 54 and does not square with a larger aim of reproductive autonomy. While the principal–agent framework directs employers to act in their employees’ interests, in reality the ESI model places decisions about access to reproductive care in the hands of employers, privileging their interests over employees’, fundamentally undermining the concept of reproductive autonomy.
“[A]t their core, reproductive rights cases are just as much about what is being safeguarded and why, as who the rights are being safeguarded from. They consistently describe, up until Dobbs, a universe in which private and intimate decisions around reproduction are left to the individual alone, in counsel with health care professionals.”Footnote 55 In Roe v. Wade, for instance, the right to abortion was safeguarded in part because of pregnancy’s potentially harmful effects on physical and mental health, financial well-being, and the experience of stigma against unwed mothers.Footnote 56 Planned Parenthood v. Casey characterized reproduction as a defining life choice “central to personal dignity and autonomy.”Footnote 57 Contraception cases have emphasized the repulsive nature of intrusion into the sensitive and personal decisions about reproduction.Footnote 58 Even Dobbs, while overturning the federal constitutional right, does not challenge the idea that abortion care is deeply personal.
Employers do not exert control over abortion access to the level that state bans and criminalization do. Indeed, employers are statutorily prohibited from discriminating against employees who seek, obtain, or forego abortions.Footnote 59 But if reproductive autonomy demands the choice reside with individuals, then ESI and its level of employer control over abortion care represent a practical and existential challenge to the fulfillment of many Americans’ reproductive autonomy.
Employers have their own economic, actuarial, moral, and other interests that may conflict with employees’ interests, compromising employers’ ability to be trusted fiduciaries of rights as important as reproduction.Footnote 60
Employers may act on economic concerns, sometimes viewing pregnant workers as “economic liabilities.”Footnote 61 Employers may discourage pregnancy because of the costs of accommodating parental leave and job modifications,Footnote 62 concerns about organizational fairness to other employees who must pick up extra work,Footnote 63 and desire to meet the sensibilities and preferences of customers.Footnote 64 These interests largely instruct that employers should fully fund abortion and contraceptive services, as a way to avoid some of these more onerous expenses.
Employees also sit as actuaries because they at least partially fund their employee health plan. Employers who self-insure see the direct cost of employee health consumption, while employers who pay insurers see consumption indirectly in the cost of employer contribution to the premiums. Pregnancy is costly to health plans. Labor and delivery costs can exceed US$20,000Footnote 65 and constitute one of the most frequent causes of hospitalization of the non-elderly. Abortions are a cost-saving mechanism for a health plan, with one study reporting that unintended pregnancies account for a full 1 percent of the employer’s health benefits spending per year.Footnote 66
But not all employer incentives flow from economic self-interest or point toward abortion coverage. Employers’ moral or religious beliefs may influence their funding of reproductive services. Hobby Lobby, the nationwide craft chain, famously challenged the contraception mandate of the ACA, winning the right of some nonreligious entities to refuse to cover certain health services in employer plans on the basis of their religious objection.Footnote 67 Employers also court public opinion, which may direct them in favor of covering abortion services or against it at any moment or location. For example, in the aftermath of Dobbs, companies driven by socially conscious branding may capitalize on popular opinion, given that a majority of Americans oppose Dobbs and believe abortion should be legal in all or many circumstances.Footnote 68
Employers thus have varied self-interests implicated in their decision whether to offer their employees coverage for abortion. Some interests argue for coverage; some argue against. This is not truly the point. Fundamentally, the very idea of a fiduciary of reproductive care funding is troubling to the goals of reproductive justice, which demand that individuals be supported in decisions to reproduce or not, as well as in safely raising their children.Footnote 69 A fiduciary inserts third-party control over the individual, whereas reproductive freedom demands the individual have control over their own reproductive future without interference from others (barring limited interests of the state). Employers’ own economic interests might drive them to cover abortion care to avoid the costs of employees’ reproduction, in convergence with one dimension of reproductive justice. Relying on this interest convergence, however, can thwart the other dimensions of reproductive justice. Consider that the same combination of economic interest and coverage discretion drives most employers to refuse coverage of assisted reproduction services unless mandated, as Myrisha Lewis illuminates in her chapter.Footnote 70
When employers’ interests conflict too powerfully with the interests of their employees, it imposes agency cost: “the cost arising from a system that gives an agent the incentive to act contrary to the interests of its principal” specifically “by providing inadequate health care to their employees” for the firms’ financial gain.Footnote 71
When agency cost is too great, this justifies the need for public governance. Consider the case of abortion benefits after Dobbs. In states that criminalized or banned abortion, employers will face enormous political pressures to discontinue abortion benefits. They will also face rising financial and other burdens in meaningfully supporting access to abortion, if it means networking to include out-of-state providers, and then covering the costs of out-of-state procedures and travel expenses.
This may be a time where agency cost is too great, and outside regulation of the employer–employee benefit regime is needed to ensure employers act in their employees’ best interests. Yet, employers are only involved in paying for abortions because federal and state governments have refused public funding through the Hyde Amendment. No governmental help is likely coming to secure the abortion-access interests of employees, especially not in the states where the greatest pressures to defund abortion will be. Any efforts by the government to expand health benefits and to align employer interests with increased health coverage will very likely continue to make abortion the exception, as has been the case in prior decades of health reform and regulation.Footnote 72
10.5 Conclusion
Dobbs fully empowered public law to deny access to abortion. To the extent that ESI beats back against the tide of abortion bans that Dobbs enabled, advocates for reproductive autonomy have reasons to be thankful that private law plays this role. Despite their limited reach, these private law ramparts for ESI coverage present opportunities to expand abortion access in a new era of extreme restriction. Yet, theoretical examination of the employer-sponsored benefit model instructs caution. Employers have long privileged their own economic interests over the health needs of their employees. Employers may face external pressures to discontinue abortion coverage, absent legal requirements to do so. And, ultimately, employer control over abortion benefits, even if it sometimes means access, can be undermining to the very notions of reproductive autonomy. Ultimately, public and private law both prop up a system of employer choice, rather than individual autonomy.
11.1 Introduction
The use of fertility treatment and assisted reproductive technology (ART) in the United States and globally is increasing over time.Footnote 1 As of April 2023, the World Health Organization estimates that approximately one in six individuals have faced infertility globally.Footnote 2 Fertility treatment includes the use of drugs to stimulate egg production, in vitro fertilization (IVF), and, for some, the use of gestational surrogacy to aid in childbirth.Footnote 3 Debates have abounded and continue to abound in federal legislatures, state legislatures, and society more broadly about the morality of abortion, contraception, and assisted reproduction, as well as whether governments, public insurers, and private insurers should facilitate access to these medical treatments.Footnote 4 This chapter explains how private health insurance, like public health insurance, can be a catalyst for innovation and societal acceptance. Insurance coverage can be an indication of medically accepted procedures and products, as well as a proxy for ethical views, social views, and employer views on appropriate health care. This is particularly the case in the realm of reproduction, especially in relation to assisted reproduction and abortion.
Fertility treatment is becoming an increasingly routine benefit offered by private employers to their employees through contracts with health insurance providers and fertility benefit providers. Often, the provision of fertility insurance benefits stems from private law, not public law, even when the insurance contracts are entered into and implemented in states with fertility insurance mandates as those state insurance mandates are often preempted by federal law. The chapter proceeds as follows. Section 11.2 will address ART in the United States and the limitations of the few existing state health insurance mandates related to ART. Next, the chapter discusses employer-provided coverage of egg freezing and fertility treatment and the ways in which private law significantly impacts individuals’ decisions related to assisted reproduction. The chapter concludes by considering the relationship between public and private health insurance and the means through which the two may influence each other in ways that lead to expanded insurance coverage of fertility products and procedures.
11.2 Health Insurance and Fertility Exceptionalism
The definition of ART has changed over the years, but this chapter focuses on IVF (the combination of eggs and sperm in the laboratory to create an embryo for implantation), egg freezing or oocyte cryopreservation, and the use of fertility drugs to increase the likelihood of pregnancy or to maximize the availability of eggs.Footnote 5 The World Health Organization, American Society for Reproductive Medicine, and American Medical Association consider infertility a disease.Footnote 6 Yet in the United States, infertility is not treated as a routine matter whose treatment is covered by insurance plans in the same way as other medical occurrences like high cholesterol, heart attacks, organ transplantation, pregnancy, or broken bones. Part of this aversion to the insurance coverage of fertility treatments stems from the same opposition that accompanies IVF, abortion, and contraception: extensive, often conservative hostility to these treatments based on moral or political views.
Insurance coverage is critical to accessing health care in the United States.Footnote 7 The Patient Protection and Affordable Care Act (PPACA) expanded access to health care through reforms such as precluding insurance companies from refusing to cover or requiring higher premiums for individuals with preexisting health conditions, requiring certain employers to provide health insurance coverage meeting minimum essential coverage requirements for their full-time employees or face an “assessable payment,” and the requirement that individuals purchase health insurance or face tax penalties.Footnote 8 The “minimum essential health benefits” that insurance plans must cover under the PPACA do not include ART services.Footnote 9 Today, private, employer-provided health benefits, which are significantly governed by private law, cover nearly 159 million people in the United States.Footnote 10
As a preliminary matter, insurance coverage usually does not occur until a technique is recognized as “established” instead of “experimental.”Footnote 11 Often, this recognition is top-down as private insurance companies often follow the coverage and reimbursement decisions of public insurance programs, namely Medicare.Footnote 12 In 2018, the American Society for Reproductive Medicine (ASRM) announced that “egg freezing,” the colloquial term for “advance oocyte cryopreservation,” was no longer an “experimental” treatment.Footnote 13 Even though the ASRM no longer considers egg freezing as “experimental,” most health insurance programs do not include egg freezing as a covered treatment. While egg freezing is no longer considered “experimental,” its success rates are lower than many individuals likely expect.Footnote 14 Even though it may be covered in certain instances of medically induced infertility such as when individuals become infertile after treatments for various forms of cancer or leukemia, fertility preservation as one waits for a preferred partner or better time in life is often not deemed a covered health insurance procedure in the same way preventive care is.Footnote 15
The Cleveland Clinic characterizes IVF as “one of the most effective assisted reproductive technologies (ARTs) available.”Footnote 16 Since the birth of Louise Brown, the first child in the world born as a result of IVF, on July 27, 1978, over 8 million babies have been born as a result of IVF.Footnote 17 Insurance coverage of fertility treatment is not routine, despite a lengthy effort over the past several decades by many patients, activists, and legislators to normalize medical coverage of fertility treatment.Footnote 18 As of May 2023, the following states have mandated some form of infertility coverage: Arizona, California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Maryland, Massachusetts, New Hampshire, New Jersey, New York, Ohio, Rhode Island, Texas, and West Virginia.Footnote 19 Maine was added to this list on January 1, 2024.Footnote 20 Yet, coverage mandates vary extensively among states.Footnote 21 For example, West Virginia was the first state to include “infertility services” in its list of “basic health services” in 1977, but the statute does not define what “infertility services” that health maintenance organizations (HMOs) are required to cover.Footnote 22 In addition to the lack of statutory definition of “infertility services,” West Virginia enacted its statutory mandate before the birth of Louise Brown.Footnote 23 As a result, it is likely that the drafters of the statute did not anticipate IVF or egg freezing. Montana’s statute mandating insurance coverage also fails to define what “infertility services” are.Footnote 24 After advocacy by various groups, including RESOLVE: The National Infertility Association (RESOLVE) and the Colorado Fertility Advocates, the Colorado Building Families Act went into effect on January 1, 2022 (with a subsequent amendment effective January 1, 2023 “clarifying” the scope of the bill).Footnote 25 The Colorado Building Families Act requires certain insurance plans to cover egg retrieval and embryo transfers, and the Act specifically mentions “using single embryo transfer when recommended and medically appropriate.”Footnote 26 On May 2, 2022, the Governor of Maine approved H.P. 1144 – L.D. 1539 “An Act To Provide Access to Fertility Care.”Footnote 27 Per the Act, effective January 1, 2024, “the Act applies to all policies, contracts and certificates executed, delivered, issued for delivery, continued or renewed in [Maine] on or after January 1, 2024.”Footnote 28
Moreover, many exceptions exist even when fertility coverage is mandated by state statute. For example, the Colorado Building Families Act has a specific exclusion from coverage for certain religious organizations.Footnote 29 Similar exclusions exist in other states’ statutes.Footnote 30 Furthermore, the scope of fertility coverage is limited. While some states’ “fertility coverage” mandates include IVF (and the cryopreservation often combined with IVF), others simply include diagnosis of infertility and, in many instances, appear to cover contraception or medical sterilization as opposed to fertility drugs or procedures that aim to result in childbirth.Footnote 31 Maine’s forthcoming Act allows health plans to enact “reasonable limitations” on their coverage.Footnote 32 Some state health insurance mandates specifically exempt “experimental procedures” from the health benefits that an insurance plan must cover.Footnote 33 Moreover, state insurance mandates often leave out same-sex couples or single individuals.Footnote 34 For example, three states’ statutes cover IVF but require that women’s eggs be fertilized with their husband’s sperm.Footnote 35 Also, “infertility” is sometimes defined in a manner that requires the individual to have tried to naturally conceive unsuccessfully for a specified period of time.Footnote 36 LGBTQ couples and single individuals are thus often left out of state insurance mandates or individual health insurance policies.Footnote 37
Opponents of insurance coverage of fertility treatments also often emphasize how costly they can be, which could in turn increase insurance premiums.Footnote 38 While surveys have limitations, a survey commissioned by RESOLVE, and carried out by Mercer, a consulting company, revealed that 97 percent of surveyed companies said “that adding infertility coverage did not result in a significant increase in medical plan cost.”Footnote 39 Because of costs, various polities like Ontario and Québec have reconsidered the provision of fertility benefits or limited its availability.Footnote 40 Actuarial costs have also motivated insurance companies to reduce costs, which is why insurance companies have incentivized single embryo transfers, for example, so as to minimize the likelihood and significant costs of non-singleton pregnancies and multiple births, which are costlier than singleton pregnancies.Footnote 41 Generally, insurance coverage does not subsidize unfettered access to fertility treatments, so insurance-covered or publicly provided ART often comes with limitations on access to maximize success rates and minimize costs, including age restrictions, restrictions on the number of covered cycles, restrictions on the number of embryos that can be transferred in a single IVF cycle, and restrictions on the marital status of those who may access the treatments.Footnote 42 The restrictions that exist in state insurance mandates as well as insurance policies’ contractual restrictions on access can reduce the costs of ART to health insurance plans.Footnote 43
Many state insurance mandates only apply to employer-sponsored health insurance plans, and grandfathered health plans may be specifically exempted.Footnote 44 Beyond these statutory exemptions, as Professors Blake and McCuskey note in this volume, “[the Employee Retirement Income Security Act of 1974] preemption exempts employers who structure their health plans as ‘self-funded’ plans from compliance.”Footnote 45 Approximately 65 percent of covered workers were in a self-funded health plan in 2022, and 64 percent in 2021.Footnote 46 Due to these coverage exclusions, state insurance mandates for fertility coverage may only apply to 40 to 58 percent of health insurance plans in a state, assuming the state even has a fertility coverage mandate.Footnote 47 Yet, in spite of these statutory exceptions and some public opposition to the provision of fertility benefits, many private employers still opt to provide these benefits through health insurance contracts or contracts with fertility benefit providers.Footnote 48
11.3 Employer-Sponsored Private Coverage of Fertility Treatment
There is a significant body of literature that focuses on the disparities that exist in access to fertility treatments.Footnote 49 These disparities in access to ART include a lack of access to ART and use of it based on race, income, and geographic location.Footnote 50 Lack of insurance coverage for fertility treatments exacerbates these disparities. While targeted toward infertile couples, ART has become more appealing to varied groups including those who are not medically infertile, but who use it to reproduce and create families. While there have been a few programs to aid low-income individuals without insurance coverage who are experiencing infertility, assisted reproduction generally requires hefty out-of-pocket spending in the absence of subsidies.Footnote 51 This renders the actions of individual employers, who decide what nonessential health benefits like fertility coverage will be available to their employees through private health insurance contracts, especially significant to ART accessibility in the United States. Where employer-provided coverage of fertility treatment exists, even in the absence of mandated coverage, disparities still exist.Footnote 52
Competition among employers to attract the most attractive employees can lead to expanded benefits packages for employees as can state insurance mandates.Footnote 53 There are significant disparities in what is covered by employee plans. For example, 24 to 42 percent of surveyed large employers cover IVF, and 23 to 38 percent of the largest employers cover intrauterine insemination.Footnote 54 Yet, those plans did not always cover egg freezing, which the technology sector has been a leader in covering for its employees.Footnote 55 Among companies with over 500 employees, as of 2020, 27 percent of those employers offer IVF coverage, up from 24 percent in 2015, and 11 percent offer egg freezing, an increase from 2015, when only 5 percent of those companies covered egg freezing.Footnote 56 Moreover, fertility providers sometimes provide lists on their websites of local companies providing fertility coverage in their employee benefits packages.Footnote 57 These provider lists are in addition to many “crowdsourced” methods, of identifying employers who provide fertility insurance benefits, like Reddit threads and TikTok videos.Footnote 58
Some are critical of employer subsidization of egg freezing by noting that it implies that women are expected to delay childbirth and increase labor productivity.Footnote 59 Yet, there is no requirement that individuals avail themselves of these employee benefits. Moreover, as those who study the coupling of health insurance and employment note, individuals often move from employer to employer.Footnote 60 Therefore, one could take advantage of one employer’s health benefits and move to another employer. Additionally, providing fertility benefits could be beneficial to employers from the perspective of employee retention. A FertilityIQ survey found that “61% of employees who received fertility coverage from an employer said they felt more loyal and committed to the company … [and] 88% of women who had IVF treatment fully paid for by their employer chose to return to that employer after maternity leave, compared to around 50% of the regular population without fertility benefits.”Footnote 61 Similarly, 62 percent of surveyed companies found that offering infertility coverage aided them in “staying competitive and attracting and retaining talent.”Footnote 62
Employer-provided fertility benefits offer a subsidy to those who otherwise may not have the funds on hand to finance assisted reproduction. Thus, employer-sponsored reproduction can save these individuals from the fates of many others who pursue assisted reproduction, which includes depleting their savings, taking out loans, or having no means to pay at all.Footnote 63 For example, a cycle of IVF without fertility drugs is estimated to cost between US$12,000 and US$17,000; the cost with fertility drugs raises the estimated cost to US$25,000.Footnote 64 Egg retrieval and freezing is estimated to cost between US$15,000 and US$25,000.Footnote 65 Storing frozen eggs can cost up to US$800 per year, and storing banked sperm costs between US$100 and US$500 per year.Footnote 66
In the wake of health care reform, economic downturns, and social change, the disadvantages of having health insurance and other leave inextricably connected to employment and marriage have become more apparent.Footnote 67 Subsidized access to fertility treatments is often provided through a third-party provider, as opposed to the standard employee health insurance plan.Footnote 68 For example, shortly after Elon Musk’s purchase of Twitter, news coverage focused on how Twitter’s layoffs stymied employee access to Carrot, a fertility benefits provider.Footnote 69 One individual who was fired from Twitter stated that “… she would have left the company [a year earlier] if it weren’t for the fertility treatment benefit, and she was promised health benefits would continue a year after any takeover. In the end, she had one week.”Footnote 70 Thus, the disadvantages of employer-sponsored health insurance coverage may also accompany employer-sponsored fertility benefits.
The focus of this volume is on private law, but there is a relationship between private health coverage and public health coverage. Lessons and practices are often exchanged between private and public health insurance companies. Private health insurance drug formularies generally cover, at a minimum, for example, drugs covered by public health insurance programs. There are many entities in the federal government that provide health care and health insurance, including Medicare, the Federal Employees Health Insurance Benefit Plan, TRICARE, the Indian Health Service, and the US Department of Veterans Affairs. While private law may not aid those individuals directly, the innovations of private health insurance can directly influence public health programs. For example, while Utah does not have a fertility insurance mandate, the Centers for Medicare and Medicaid Services approved Utah’s 2020 application for a waiver to permit the state to “provide in vitro fertilization services and genetic testing for Medicaid eligible individuals who have one of the following conditions: Cystic fibrosis, spinal muscular atrophy, Morquio syndrome, myotonic dystrophy, or sickle cell anemia.”Footnote 71 A subsequent five-year waiver renewal application was approved until June 30, 2027.Footnote 72
Despite the lack of a federal mandate for health insurance reform to include fertility preservation, there is a notable federal exception: certain wounded servicemembers. Despite years of debate about whether Congress should mandate coverage of fertility treatment for federal civilian employees, specifically, and the public, more broadly, in 2016, Congress authorized the Department of Defense to expand coverage of or directly provide ART services to certain categories of veterans and enlisted personnel, namely those with service-related injuries.Footnote 73 Some veterans with service-related conditions that have resulted in infertility are eligible for ART services, yet those ART services do not cover donor gametes, gestational surrogacy, or unmarried individuals.Footnote 74 Former Secretary of Defense, Ashton Carter, was “inspired during visits to Silicon Valley” to create Initiative #35, “Egg and Sperm Cryopreservation,” that would permit deploying service members to freeze their gametes before deploying although ultimately Initiative #35 was never funded.Footnote 75 In the meantime, members of Congress continue to introduce legislation to expand access to ART for servicemembers although the provisions are routinely curtailed by conservative opposition.Footnote 76 Additionally, military family advocate groups use their own money to subsidize ART access for active-duty Special Forces personnel.Footnote 77 In the summer of 2023, two lawsuits were filed against the Department of Defense and Department of Veterans Affairs on behalf of current and retired servicemembers who were excluded from ART coverage based on the agencies’ restrictive policies.Footnote 78 In January 2024, Judge Caproni issued a 90-day stay of some of the claims in the New York case in order to give the Department of Defense and Department of Veterans Affairs time to finalize changes to their IVF health insurance coverage policies.Footnote 79 These policy changes are expected to increase the number of individuals who could access covered IVF treatments by modifying the requirement that those accessing covered IVF services be in an opposite-sex marriage as well as permitting the use of donor gametes in certain instances. Private health insurance programs can influence public health insurance programs and mitigate conservative political views in a way that expands access to fertility treatments.
11.4 Conclusion
Insurance coverage can have a substantial role in normalizing a treatment, especially in the realm of reproductive innovation. Moreover, views about “necessity” can change. The routine health insurance coverage of childbirth expenses is something that started and evolved over approximately the past thirty years.Footnote 80 Similarly, in October 2023, the American Society of Reproductive Medicine issued a “new, more inclusive” definition of infertility that specifically includes individuals “regardless of relationship status or sexual orientation.” It is possible that the new definition of infertility may be incorporated into future legislation or private insurance contracts.Footnote 81 Private health insurance or other subsidized coverage can constitute significant action, especially when legislators are actively avoiding a topic by failing to introduce or consider legislation or policies that could further it. Private coverage of fertility treatment aids in the normalization of ART in the United States, which may ultimately overcome moral and political opposition to the use of and funding of assisted reproduction more broadly in the United States.
12.1 Introduction
On June 24, 2022, Roe v. Wade was officially overturned by the Supreme Court of the United States, causing abortion care, an already inaccessible and stigmatized health care option, to become further out-of-reach for people. The decision in Dobbs received widespread resistance, including in the form of protests, civil society activism, advocacy, and legislative and administrative action. Several corporations doing business in the United States also condemned this ruling and took action to signal their commitment to reproductive rights.
This chapter engages with the hypothesis that while private action undertaken by corporations may in some cases enhance individuals’ access to reproductive rights and supports, a general reliance on corporations to meet reproductive needs and demands of people and communities may be ill-advised. Section 12.2 of this chapter asks the question of how corporations responded in support of reproductive rights in the aftermath of Dobbs. Section 12.3 of this chapter asks why they were motivated to do so. Section 12.4 unpacks the broader societal impacts of these responses in juxtaposition to demands made by the Reproductive Justice (RJ) movement. Section 12.5 sets out a research agenda that, if undertaken, will allow us to get clearer answers about the overall desirability for reliance on private law to provide reproductive health care.
12.2 The Corporate Responses to Dobbs
There is a broad literature documenting the evolution of corporate form and purpose.Footnote 1
Debates about corporate purpose touch on important ethical questions about the involvement of corporations in social, political, and economic spheres. In the recent past, Corporate Social Responsibility (CSR) has gained traction as a corporate practice, with businesses considering the social, economic, political, and environmental impacts of their actions, and engaging in philanthropy or volunteering as a result. According to a poll conducted in 2019, 41 percent of Fortune 500 CEOs viewed “solving social problems” as part of their strategy to conduct business.Footnote 2 A separate but related framework, the Environmental, Social, and Governance (ESG) framework, is also gaining popularity, accompanied by an increase in rating agencies quantifying corporate performance in these areas and measuring how sustainable a corporation is.
Due to these shifts in the conceptualizations of corporate purpose (from a shareholder wealth maximization approach to a more progressive stakeholder theory), there has been a rapid increase in corporations publicly engaging with social and political issues. As per a survey of at least 274 US corporations, a relatively significant number of corporations had taken public stances on issues of racial equality (61 percent), LGBTQ+ rights (44 percent), and gender equality (39 percent).Footnote 3 These engagements influence social policy on many fronts, including health policy.
All social issues do not receive equal attention. A study found that only 10 percent of corporations had responded or planned to respond to the Dobbs decision with public statements.Footnote 4 Additionally, only about 51 percent of corporations had addressed or planned to address the issue of reproductive rights in the aftermath of Dobbs.Footnote 5 Given the importance of the moment and its implications for people of reproductive age, this response seemed very muted. The following paragraphs will briefly describe some of the ways corporations publicly and internally addressed the implications of Dobbs.
Publicly, some corporations made statements denouncing the Supreme Court’s decision.
Corporations such as Johnson & Johnson used this opportunity to emphasize how decisions about reproductive care must be left to individuals and their healthcare providers.Footnote 6 Corporate statements, such as that of Reddit, also framed reproductive rights as an issue concerning the health and safety of their own employees. Importantly, some corporations such as Levi Strauss & Co. implored other business leaders to make their voices heard, given that the protection of reproductive rights “is a critical business issue impacting [the] workforce, []economy, and progress towards racial and gender equity.”Footnote 7
In addition to making public statements, some corporations also pledged donations to reproductive rights organizations including the Planned Parenthood Federation of America and the Center for Reproductive Rights. While some organizations donated to the National Network of Abortion Funds, it seems that most corporate donations went toward national-level reproductive rights and advocacy organizations instead of state or local organizations or those working specifically on issues of RJ – organizations that often require resources due to being underfunded.Footnote 8
Many corporations responded to the abortion ruling internally. This included making announcements around travel stipends or reimbursements for expenditures related to travel undertaken to receive reproductive care out of state. Internal policies differed by the amount reimbursable, travel miles required to be able to take advantage of the policy, and the provision of other travel benefits such as the cost of lodging, childcare, and taking a support person. Some corporations also made changes to employer health plans to include the provision of reproductive health care services.Footnote 9
Companies responded by adopting other policies as well.Footnote 10 For instance, some companies announced that they would cover legal costs that may arise under new abortion state laws. An example of this is the costs related to transporting individuals to abortion clinics by Lyft and Uber drivers.Footnote 11 Patagonia, on the other hand, announced the creation of a bail fund for employees who were protesting antiabortion measures.Footnote 12 Some corporations, such as Google, also announced the option for employees to relocate without justification to states where abortion is legal.Footnote 13
There is literature on whether and how there should be legal enforcement of CSR, and whether CSR codes are binding depends on several factors – which makes it hard to discuss whether they are enforceable in general.Footnote 14 Professor Anna Beckers importantly discusses the “self-regulating” nature of CSR, and how “private law, exemplified with the contract law regarding CSR self-regulation, currently adopts a predominantly facilitative approach towards CSR self-regulation in the sense that it allows for its adoption and interprets its legal consequences in the light of the intention of the company having adopted it.”Footnote 15 Consequently, the way in which private law operates, in status quo, has upheld a system where CSR and ESG initiatives lack enforceability and teeth and are left to be shaped by the corporation itself.
Regardless of whether CSR initiatives are enforceable, private law and action impact social policy, and there is a more important question about whether corporate action on certain subjects is desirable, and more beneficial than harmful to social movements.
12.3 Analyzing Corporate Motivation
The following paragraphs seek to dive into the different reasons that drove corporations to signal their support for reproductive rights. There are two reasons why such an analysis may be important. First, it may weaken claims that corporations participating in proabortion politics are doing so purely altruistically and show how their participation is self-interested. Second, they may help us identify strategies and pressure points when thinking about ways to influence corporate behavior or facilitate private law interventions.
Evidence has shown that CSR initiatives lead to improved bottom lines for corporations by gaining competitive advantages and developing reputational capital.Footnote 16 For starters, providing reproductive supports and taking pro-choice stances internally and externally may be an important strategy to attract and retain employees. Studies have shown that women in states with better access to contraception have higher rates of labor force participation and more frequently pursue full-time employment.Footnote 17 People in the workforce themselves have expressed a preference to work in states where abortion is legal. A study has also shown that 63 percent of college-educated workers would not apply for a job in a state that has recently banned abortion.Footnote 18 Not only do corporations need fresh talent, but they also are obliged to meet their gender and racial diversity commitments.
A new study by Adrjan et al. utilized data on job satisfaction, job search behavior, and wages from Glassdoor and Indeed to analyze how companies that offered abortion-related benefits in the wake of Dobbs fared compared to companies that did not provide those benefits.Footnote 19 This has been among the first and only studies that have documented the causal impact of the announcements of such benefits. Their research found that from July 2022 (the month after the Dobbs decision) through January 2023, job seekers explicitly included abortion or related words in their search criteria 147 percent more often relative to job seekers in January 2019. In relation to this, they also observed two other phenomena: (1) that the increase in clicks on the job postings of announcing firms is particularly pronounced in female-dominated job postings – particularly, among high-wage women in trigger states; and (2) smaller firms enjoyed the largest increase in job seeker clicks, and while they may typically struggle to stand out and compete for labor, the announcement of abortion benefits may have helped them to attract job seekers.
In addition to the issues of attracting and retaining talent, companies face a lot of pressure to adopt certain policies from their investors and stakeholders. For instance, in 2019, in an initiative organized by Rhia Ventures, a cohort of forty institutional investors, signed a letter to over thirty corporations to inquire about reproductive health-related insurance policies and benefits, as well as about public policy and political positions that would impact reproductive rights.Footnote 20
Chapter 20 in this volume describes how shareholder proposals serve as a vehicle for participation in corporate governance, and as a tool for raising existential questions about corporate purpose.Footnote 21 Post-Dobbs, several shareholder proposals were introduced where shareholders actively put pressure on companies to issue public reports on the impact of the abortion ruling on their employees. For instance, a shareholder proposal introduced by shareholders at TJX asked for the public report to “evaluate any risks and costs to the company associated with new laws and legislation severely restricting reproductive health care” and “include any effects on employee hiring, retention, and productivity, and decisions regarding closure or expansion of operations in states proposing or enacting restrictive laws.”Footnote 22 While the Board of Directors unanimously voted against this proposal and other proposals similar to this one, they mark the arrival of abortion as a new ESG frontier, and similar reproductive health-related proposals are expected in the upcoming proxy seasons.Footnote 23
Finally, in addition to pressure from investors, corporations are susceptible to pressure from their employees and consumers. A notable example of this pressure can be seen in Wayfair’s decision to enter into a contract with an immigrant detention center, leading to widespread employee protests and walk-outs, which eventually led to their share price falling by more than 10 percent.Footnote 24 While understanding that the pressure from various stakeholders described above is offered to explain why corporations have acted in support of reproductive rights, it is important to note that such phenomena are not limited to social issues associated only with left-leaning politics. For example, Target received considerable opposition from Conservatives for their Pride Month-related merchandise, causing Target to remove some of the items it was selling.Footnote 25
12.4 Analyzing Corporate Power through a Reproductive Justice Lens
Having discussed how and why corporations weighed in during the aftermath of Dobbs, this section will now discuss the impact of private law as it engages in reproductive rights politics. To analyze this question, this chapter will look at the goals and visions of the RJ movement and look at how corporate action falls within this framework.
The RJ movement was conceptualized by Black women activists who met before the International Conference on Population and Development in 1994. The framework considers how individuals negotiate intersecting identities including race, class, gender, and sexuality, and how those, in turn, impact their reproductive decisions. The RJ framework has three foundational principles – the right not to have a child; the right to have a child, and the right to parent children with dignity in a safe and healthy environment.Footnote 26
The following sections will build on the foundation of this tension between corporate reproductive politics and RJ visions and discuss the impacts of adopting the former framework on different stakeholders.
12.4.1 “Choice as a Marketplace Concept”
It is important to preface that the vision of the RJ movement is at odds with the profit-maximization-centered approach of corporations. The RJ framework roots the rights it advocates for in a human rights framework – one that posits that any interference with the rights and dignity of reproducing persons is a “blow against their humanity.”Footnote 27 For this reason, it also champions the existence of positive rights – focused on the government’s obligation to create conditions so that people can enjoy their freedoms.
On the other hand, the neoliberal worldview, championed by corporations and businesses, “inscribes on politics and culture the needs of a global capitalism that sustains itself on the free flow of capital, goods, disembedded labor, and market-friendly state policies.”Footnote 28 It relies on institutional supports and business-friendly measures taken by the state, while simultaneously promoting the idea that government should be restrained in almost all other ways, including in the provision of welfare and social services. Neoliberal policy initiatives, championed by some of these corporations acting in the wake of Dobbs, can be traced to the dilution of worker protections, the expansion of the carceral state, and the sync between money and political campaigns.Footnote 29 A manifestation of the tension between neoliberalism and RJ, and an example of the shortcomings of private law in providing reproductive care, can be seen starkly as we observe how several corporations that have taken pro-abortion stances in the wake of Dobbs have been making significant political donations to antiabortion policymakers in the hope that they can gain influence over their agendas and receive other advantages that often entail deregulatory aims.Footnote 30
Some may argue that a neoliberal approach is baked into our jurisprudence around reproduction. The constitutional right to abortion was recognized in Roe v. Wade and was rooted in the right to privacy, giving women the “right to choose” whether they wish to continue their pregnancy or not. The “choice” framing has been criticized as it does not consider the other barriers, including financial, social, religious, and geographical factors that impact an individual’s ability to make choices. Instead, it implies (by design) that every woman can enter the marketplace of options and pay for whatever option she chooses – a neoliberal approach that prioritizes private relationships and is contingent on the possession of resources. The blind spots of the choice framework are evident in Harris v. McRae, where the Supreme Court of the United States held that the Hyde Amendment, which blocked the use of Medicaid funding for abortions in most circumstances, was constitutional because it did not impinge on choice, given that it was poverty, not state action, that impeded a woman from having an abortion.Footnote 31 This case had devastating effects and led to the denial of abortion care for scores of individuals who were left to the devices of private law – particularly those who are low-income people, young people, and racial and ethnic minorities.Footnote 32
Due to the embrace of a pro-choice paradigm leaving individuals to fend for themselves, and in the absence of public law stepping in to protect reproductive rights, the reliance on private law and corporations to provide abortion care has increased. About 48.5 percent of Americans are covered by employer health plans,Footnote 33 and therefore rely on their employers for their health care, including access to reproductive health care. In their chapter in this volume, Chapter 10, Employer-Sponsored Abortion Coverage: Private Law’s Role in Reproductive Freedom, Valarie K. Blake and Elizabeth Y. McCuskey analyze how a regime that fosters reliance on private relationships, particularly with one’s employers, to provide reproductive health care continues to exclude those who are most in need of financial assistance, including those who do not receive health care coverage through their jobs, and those who are on Medicare, Medicaid, or are federal workers. This chapter also discusses how, for employees who may receive health care coverage from their employers, claiming that they have the right to “choice” is a falsity.
Data has shown that about 75 percent of employers only offer one health plan to their employees.Footnote 34 Moreover, what is covered within those plans is also left up to the discretion of corporations.Footnote 35 Using the specific example of abortion, employers have near total discretion in their decision to cover abortion care or not, resulting in about 10 percent of all employees being covered by plans that exclude abortion care.Footnote 36 Corporations may also design plans with restrictions on service providers and impose cost-sharing arrangements that may impinge on an individual’s choice-making. While some may argue that individuals “choose” to work at the firms and corporations they are at, most people may have no option but to accept the terms of coverage they are being provided.
12.4.2 Hyper-Focus on Abortion and Disregard for the Right to Parent and Raise Children in Safe Environments
One major critique of the mainstream movement for reproductive rights was that it did not address or grapple with the concept of “stratified reproduction” or the idea that reproductive labor is differently valued and rewarded based on where they fall in intersecting hierarchies of race, class, gender, and so forth.Footnote 37 Consequently, this movement ignored the demands of people who desired to become parents but faced significant barriers to doing so from the state.
This ignorance of the right to parent and the right to raise one’s children in safe and healthy environments is mirrored by corporations. While they continue to signal their support for reproductive rights, their supports are inadequate for parents and parenthood. This is not shocking, given the anti-pregnancy environment in the United States, which is among the only developed nations not to mandate paid parental leave. Despite legislation such as the Pregnancy Discrimination Act, pregnancy discrimination is rampant, particularly in corporations. Research has shown that 23 percent of parents reported that they “considered leaving a job because of discrimination or lack of reasonable accommodations during a pregnancy.”Footnote 38 In addition to being perpetrators of this type of discrimination, businesses have also lobbied against federal paid parental leave, and when they have supported it, they “have advocated for preemption from state and local standards by organizations that meet a minimum floor of coverage.”Footnote 39
There are reports of corporations cutting parental leave, in response to inflationary pressures, while at the same time responding to Dobbs by creating new abortion benefits.Footnote 40 A survey by the Society for Human Resource Management (SHRM) found that organizations that had increased parental leave during the pandemic were now scaling back – and the number of organizations offering paid maternity leave dropped to 35 percent in 2022, from 53 percent in 2020.Footnote 41 During the same period, the number of corporations granting paid paternity dropped as well – from 44 percent to 27 percent.Footnote 42 These rates indicate a return to pre-pandemic levels, showing that gains, in terms of progressive parental leave policies that were achieved during the pandemic, were short-lived and not consolidated. Additionally, it shows that corporations may be expanding abortion provisions in response to the political moment but may scale these back in a few years when attention on this subject reduces.
All of these examples of such seemingly inconsistent behavior show just how, in the absence of public law providing adequate reproductive supports to parents and children, corporations are left to fill the gaps and are afforded a wide amount of flexibility and discretion in their approaches.
12.4.3 Accounting for Intersectional Harms
The RJ movement was conceptualized by Black women activists in 1994 and broadened in scope by women of color coalitions. Women of color groups, who were originally seen as objects of reproductive control, demonstrated the power in their collective organizing work that was rooted in the needs of their communities. The RJ movement’s strengths lie in its understanding that “the impacts of race, class, gender, and sexual identity oppressions are not additive but integrative. For each individual and each community, the effects of these impacts will be different, but they share some of the basic characteristics of intersectionality: universality, simultaneity, and interdependence.”Footnote 43 In this way, it does not only address women of color but also looks at how issues intersect with one another, thereby impacting the reproductive lives of people.
In the aftermath of Dobbs, any assessment of corporate reproductive politics failed to focus on groups of individuals or workers who were situated at the intersections of different identities and were sidelined or excluded by “reproductive rights” politics. In other words, some of the most vulnerable people did not receive priority or protection from corporations. An example of this can be seen in the case of independent contractors.
Several corporations such as Uber and Lyft have been at the forefront of a battle to classify their workers (particularly workers for rideshare companies, delivery service, etc.) as independent contractors instead of employees. This dualism has been powerfully critiqued as creating precarious working conditions in terms of pay and working conditions, as well as disrupting worker collectivities.Footnote 44 In the aftermath of Dobbs, various corporations held that independent contractors were excluded from receiving abortion benefits by corporations. While these policies implicate a larger issue of worker misclassification, in the short run, it may lead to denying individuals crucial reproductive supports they may need.
For instance, Amazon’s US$4,000 reimbursement for travel expenses only applies to those US employees who are enrolled in employer-sponsored health plans, thereby excluding about 115,000 delivery drivers. This also excludes Amazon’s 2.9 million gig workers who work on the Amazon Flex app and thousands of Amazon warehouse employees who work under twenty hours a week, on a so-called flex schedule, or receive Medicaid as their health insurance.Footnote 45 In corporations such as Amazon, Uber, and Doordash, independent contractors are often the most vulnerable workers. For instance, the average income of Amazon delivery workers is about US$43,207 per year or about US$21 per hour.Footnote 46 The average cost of an in-clinic first-trimester abortion before Dobbs was estimated to be about US$800,Footnote 47 which in itself (if paid out of pocket) would amount to the wages earned in a full week by an independent contractor – not counting the travel costs, costs of lodging, child care, and other related costs. This cost may be prohibitively high and have dire consequences for individuals, particularly those who may also have caregivers and breadwinners. The corporate decision to leave out gig workers earning minimum wage may put abortion out of bounds for many individuals, with Hispanic and Black people being disproportionately impacted.Footnote 48
As seen above, some corporations seemingly ignored the needs of their most vulnerable workers. A similar example can be seen in the context of unionizing employees who have received threats that their reproductive benefits would be lost for union organizing.Footnote 49 This selective approach was possible due to the existing lack of public law protections and regulations in support of these workers, thereby allowing for conditions of precarity to prevail.
12.5 Research Agenda
This chapter has shown how and why pro-choice corporations have participated in reproductive politics in the aftermath of Dobbs and has analyzed the shortcomings of private law in providing important reproductive health care services, in the absence of adequate state-funded supports. That said, there are several gaps in the literature on corporate involvement in reproductive politics which, if filled, may help us adequately assess the value of private law specifically in achieving the goals set out by the RJ movement.
Some open questions that may be explored in potential research are explored below.
12.5.1 Corporate Action on Reproductive Rights
At the outset, there is a lack of data at the national level that analyzes how corporations are responding to issues of RJ in the post-Dobbs landscape. Researchers can conduct a comprehensive analysis of how corporations responded to the ruling in Dobbs, and where they stand on reproductive rights and RJ issues. This analysis could include examining factors that may have influenced corporate decision-making in this realm. Some important factors to consider include whether the corporation is public or private, the size of the corporation taking the action, the state in which the corporation is headquartered, the gender and racial makeup of the Board of Directors, and if the corporation provides campaign finance to antiabortion policymakers.
Additional research is also required to assess the impact of these political stances on different stakeholders, including employees, shareholders, investors, and consumers. For instance, Adrjan et al. found that job satisfaction appeared to have declined among workers at firms announcing abortion benefits, especially for workers in male-dominated jobs.Footnote 50 This study leaned toward accepting a finding that this may be caused due to a newfound political misalignment, and there could be a vocal minority of workers who are angered by these announcements while the “silent majority” of existing employees do not change their opinions. Despite the reason behind the decline in job satisfaction, it might be interesting to study how corporations respond to such a dip in job satisfaction or other variables such as worker productivity.
More broadly, this research may help us compare the approaches taken by different corporations and better understand motivations underlying private action and corporate decision-making.
12.5.2 Legal Risks and Liabilities
Private action is also subject to the law and is significantly shaped by the laws of the state it is conducted in. In light of the fact that abortion is not legal in several states, private action by corporations is under scrutiny. For starters, corporations were warned of criminal and civil liabilities for providing benefits such as travel stipends for employees in states that banned abortion.Footnote 51 The provision of these benefits is also accompanied by privacy risks for employers under state and federal law. Recently, there were reports that a Republican Commissioner of the Equal Employment Opportunity Commission (EEOC) opened up at least three discrimination probes into companies providing abortion-related travel benefits, alleging that they were discriminating against pregnant and disabled workers by providing different treatment to those seeking reproductive care.Footnote 52 As these risks play out, it would be valuable to have a state-by-state analysis of lawsuits and corporate responses to liability, lawsuits, and the strategies they adopt to protect themselves and their employees. It would also be important to keep an eye out for how corporations deal with stakeholders they consider “disposable.” For instance, would corporations protect certain classes of workers more than others if they were implicated in lawsuits arising out of Dobbs? It would also be interesting to study whether there is an increase or decrease in corporate action in the reproductive rights space in response to activity in the legal realm.
12.5.3 Normative Involvement of Corporations in Reproductive Politics
The truth is that regardless of one’s assessment of the harms and benefits of corporate participation in reproductive politics, it is likely to continue, motivated by the reasons outlined in Section 12.2 of this chapter. One important question for RJ advocates and scholars is regarding the normative involvement of corporations in reproductive politics. How can private law step in to offset the harms created in states where there are legislative and administrative barriers to accessing reproductive health care? Is it sufficient for corporations to merely increase attention on social issues by taking public stances, and implementing internal policies? If not, what does an expanded vision look like?
Movement actors must also weigh in on the type of economic support that is desirable from corporations. What type of economic involvement should corporations have, and what are acceptable conditions attached to providing such support? At the same time, what are the harms of allowing corporations to co-opt progressive politics?
Finally, researchers could assess the long-term impact of corporations’ involvement in reproductive politics on public perception, corporate reputation, and social change, and examine the sustainability of corporations’ commitments to RJ over time and their alignment with broader corporate practices.
13.1 Introduction
Examining the role of private law in health care systems and delivery requires some consideration of the corporation and private ordering’s impact on US health affairs.Footnote 1 Corporate law’s structure allows individuals with shared interests to pool resources and share governance through formal agreements recognized by the state.Footnote 2 The individuals forming entities can further negotiate internal contractual relationships through bylaws, shareholder agreements, indemnifications, and other instruments. Entities can also enter into contractual relationships with individuals and other organizations – creating networks of physicians, integrating health care systems, or forming binding relationships with pharmaceutical companies through contract. In recent years, corporate form has provided the foundation for the creation of a wide range of companies focused on tech-based health care interventions.
Ida Tin, a serial entrepreneur, coined the term “FemTech” in 2016.Footnote 3 Since then, the market has grown at a staggering clip, and it appears that it will continue to at a similar rate.Footnote 4 Tin used FemTech to refer to a wide range of products and technologies “designed to support and advance women’s health care.”Footnote 5 Under this umbrella, she includes “fertility solutions, period and fertility tracking apps, reproductive system health care, women’s sexual wellness products, pregnancy and nursing care [products], period care goods, as well as at-home fertility monitoring devices and general healthcare [products].”Footnote 6 When she coined the term, she was founder and CEO of Clue, a Berlin-based start-up. Creating the term was strategic; it was an effort to focus investors on this private market aimed at correcting for the lack of consumer goods and services devoted to women’s health needs.
FemTech is a form of tech-enabled private enterprise that is centered on private entities’ ability to create innovative solutions to problems. The market has led to broad expansion of private funding and research in women’s health through entities focused on the overlooked needs of women.Footnote 7 Most FemTech firms are focused on the reproductive health needs of women during their prime reproductive years. Products and services include period tracking apps, such as Clue,Footnote 8 fertility apps, and focused telehealth solutions.Footnote 9 Opportunities for the expansion of the FemTech market include products focused on menopause and nonreproductive health care needs of these consumers.
This essay proceeds in three parts. Section 13.2 will focus on the rationale behind the creation of FemTech as a market and its intersection with limited investment in women’s health care research. Section 13.3 will consider the difficulties associated with the multiple-purpose private entities. Section 13.4 will discuss the limitations private ordering faces as a response to health care inequities with a focus on (Section 13.4.1) how funding impacts private ordering and (Section 13.4.2) how the value of consumer data and, in some cases, state laws undermine privacy goals, and the ways both can dilute private law efforts to remedy health care resource gaps.
13.2 FemTech Rationale
In women’s health, FemTech has emerged as a private ordering-based solution for women’s unmet health needs. The term “FemTech” refers to a subset of companies focused on “technology-enabled, consumer-centric products and solutions.”Footnote 10 Like other markets, FemTech companies rely on basic corporate law as the foundation for introducing market-based solutions to consumers. The consumers they target have been seeking reliable health-related products traditional markets have overlooked or devalued for decades.Footnote 11 Because of this FemTech is unique. A large number of FemTech firms attempt to balance goals that are generally considered in tension with one another – maximizing profits and returns for investors while at the same time creating and/or maximizing social good.Footnote 12 Despite developments in corporate law that attempt to ease these tensions, they remain in play for many FemTech companies. Relatively recent adoption of new corporate formsFootnote 13 and emerging legal scholarshipFootnote 14 are pushing toward structures that ensure firms’ ability to maintain multiple purposes. But FemTech firms must look to private law more generally to ensure firms balance profit and corporate social responsibility goals.
Private markets rely on public law and related public policy decisions. In their work, Private Actors in Public Markets, Robert Hockett and Saule Omarova explore the link between private markets and public law noting that “… states and markets are not ‘separate but equal’ – they are inseparable and deeply interconnected parts of the nation’s economic organism.”Footnote 15 FemTech companies extract value from gaps in existing markets serving women’s health needs.Footnote 16 These gaps are often in part due to policy choices made by government and policymakers. Examples include funding and research priorities.Footnote 17 Public law and public health’s concern with disparate allocation of limited health care resources initially focused on racial inequities.Footnote 18 A focus on similar inequities related to sex and gender followed soon after.Footnote 19
The long-standing failure to prioritize research into basic questions related to women’s health has left our understanding of it decades behind that of men’s health.Footnote 20 Basic questions overlooked in women’s health include areas in which differentials in diagnostics and outcomes continue. Reproductive health is one area in which there have been relatively few attempts to understand medical science as it applies to women. Health research institutions tasked, at least in part, with ensuring Americans’ health and disseminating information to the public too often avoided research involving women in order to avoid the complexity presented by hormonal cyclesFootnote 21 and to avoid research in women of childbearing age. Public health education campaigns then used the results of research excluding women, further entrenching problems for female patients.
To better understand where we need private ordering to fill gaps created by public law, look to those areas in which disparate investment in health care research and communication continues to impact women. Cardiac events are the number one cause of death for men and women in the United States. Cardiac arrest, however, presents differently in the two sexes.Footnote 22 While both men and women are likely to experience chest pain during events, women also commonly experience symptoms that occur less frequently in men. Had such symptomatology been (1) understood and (2) its indications been more widely disseminated, physicians and women would have been better equipped to recognize and treat those symptoms early, mitigating deaths attributable to cardiac arrest. Notable gender disparities exist across a number of other nonreproductive ailments, including Alzheimer’s, lung cancer, and depression.Footnote 23
Within reproductive health, similar trends are present. Only recently have medical recommendations acknowledged the role the fallopian tubes likely play in the development of advanced ovarian cancers.Footnote 24 Gaps in understanding the function and character of the placenta are also attributable to this lack of focus on research related to women’s health.Footnote 25 Public understanding and dissemination of information related to menopause is another.Footnote 26 This is but a partial list; when considered in totality, it represents a hollowed-out middle in the collective women’s health knowledge.
Such gender-based gaps in research and public understanding of women’s health have received more attention in the past several decades. Despite this attention, those gaps remain frustratingly salient.Footnote 27 Identifying and correcting for gaps in women’s health require women’s participation as research subjects and placing women at the center of male-dominated scientific institutions. When women are engaged in these ways within science, research that can change diagnosis and treatment emerges.
13.3 The Multiple Purpose Corporate Conundrum
Elevating engagement with problems in women’s health should not be limited to machinations of public law and health policy. Private law enabled through corporate structure creates a nimble infrastructure through which to understand and respond to the health needs of groups marginalized by medical research and existing health care infrastructures, including women.
Many FemTech companies seek to achieve dual, or more, purposes.Footnote 28 Those purposes include (1) bettering the overall picture of women’s health and (2) ensuring that the company itself remains a fiscally viable going concern. In the post-Dobbs era of women’s health care, many FemTech companies have also made a public commitment to ensuring that women they serve in the United States are assured that the confidentiality of sensitive reproductive health data of consumers is protected.Footnote 29 Tin and the company she founded have noted the necessity of privacy as being central to the creation of the market.Footnote 30
Private ordering uses public law foundations to create stable relationships among groups of individuals with a shared purpose through various organizational forms. Following an organization’s creation, private law paradigms begin to govern the relationships between owners of organizations and/or those in control of decision-making, such as boards or managing members. For example, corporate actors use contract law to create governance structures through documents that are often outside the purview of the general public. Stockholder agreements, LLC membership agreements, and similar documents often limit the ability and power of individual owners to sell their ownership interests through binding agreements, often including a right of first refusal. Controlling the ownership structure through these contractual agreements ensures owners are committed to the same goals. Firms also use contract law to mitigate risks associated with tort liability, limit or ensure employee rights, and protect trade secrets and other valuable information from disclosure. Tort liability also informs corporate governance, employee training and oversight, and entry into new markets.
Despite the ways in which private ordering allows individuals with shared interests to coalesce around a unifying idea or mission, commitment to that mission may evolve over time. Often, changes emerge from concerns regarding liquidity and capital access. In the context of entrepreneurship, access to sufficient capital is critical to success.Footnote 31 The recent collapse of Silicon Valley Bank laid bare how much small tech firms rely on ongoing capital access.Footnote 32 Capital access is also entangled with questions of governance, implicating organizational leadership’s ability to adhere to multiple purposes. This can result in tension with additional purposes companies espouse, such as access to tools and services that better enable health equity, data privacy, or public benefit. Capital access also raises higher-level questions implicating race, gender, and class, notable among FemTech firms, given the large number that are female-owned.Footnote 33
Aside from some well-capitalized FemTech firms like Clue, FemTech founders face substantial challenges to raising capital.Footnote 34 When companies are able to raise capital and scale, growth may further challenge a firm’s ability to focus on nonmonetary purposes such as protecting consumer privacy. Commentators and legal scholars have already made the argument that women using FemTech applications’ privacy interests have been fundamentally undermined. Two scholars have gone so far as to argue that we are at the origin point of a FemTech-enabled dystopia.Footnote 35
13.4 The Limits of Private Ordering Solutions
Questions related to the long-term durability of multiple purposes within organizations challenge the notion that FemTech, and other forms of private ordering, are an appropriate response to health care inequity.Footnote 36 This essay argues that FemTech steps in to mitigate a lack of attention to women’s health in the public sphere. To do this, FemTech companies use public law to create privately ordered entities that can devote resources to such problems.Footnote 37 Asserting a reliance on private ordering to correct for a public law failure, however, also requires consideration of the risks it presents.
One risk, alluded to previously, relates to FemTech companies’ for-profit status, despite more not-for-profit entities like Euki appearing on the market. Even when for-profit FemTech entities are dual purpose, focus on shareholder primacy and profit maximization may lead to the neglect of other named purposes. Scholars can point to many examples of multipurpose companies that lost their way, becoming solely or primarily interested in short-term return on investment as they grew.Footnote 38 For decades, these concerns have been raised as especially concerning within health care. Those concerns are becoming more urgent with private equity’s increased investment in many areas of health care.Footnote 39 In segments of the industry where consumers face limited choices, which include women’s health care, the concerns are arguably more pressing due to those limited choices.
When entrepreneurs secure funding, they often become beholden to the interests of investors or funders. Those interests almost always impact their governance structures. Funders’ interests will sometimes be in tension with organizational values and principles, including those of FemTech companies that acknowledge multiple purposes.Footnote 40 At the same time, reasonable profits are important to ensuring a company’s future and in FemTech, broader progress in women’s health, even within a dual-purpose structure. Profits can be reinvested in research and other avenues that increase the value of the products and create broader benefits in the field.
Most funders’ primary aim is either to recoup their investment or turn a profit. Banks seek to ensure that debt and interest are repaid, often securing their interests under UCC Article 9, which allows them to seize appropriately collateralized assets when a company’s failure to pay principal and/or interest results in default. As a general rule, banks do not seek equity, but debt itself can impact governance.Footnote 41 Venture capital firms, individual shareholders, and other equity investors exert more direct pressure on a company, often in an effort to maximize returns on their investments. It would be normal to expect these players to seek to limit costs and increase revenue in an effort to maximize their individual financial returns. This will not always be the case; in recent years more shareholder and management activity has focused on questions of corporate social responsibility which remains a focus in corporate law discourse.Footnote 42
Financial and governance obligations limit the choices of organizational leadership. These limits impact FemTech firms’ ability to focus on non-fiscal purposes. Even firms primarily focused on social good require capital to meet basic needs. Capital is further required to scale activities of companies whose work creates a positive social impact. With respect to debt, obligations associated with funding are usually limited to liabilities that must be accounted for in cash flows and financial projections. Where investors are concerned, agreements create obligations that include equity ownership and/or creation of special classes of equity, which can redefine firm governance. Agreements often provide investors with Board seats, or other powers, which can impact organizational priorities. Ensuring liquidity and access to capital requires companies to meet those obligations as consideration for the capital provided.Footnote 43 These provisions give investors the opportunity to force the hands of cash-hungry entrepreneurs in ways that can contradict purposes of health equity-focused, dual-purpose organizations, including values important, if not critical, to many FemTech entrepreneurs and their companies and consumers.
13.4.1 Privacy Concerns
Another concern related to the tensions between financial interests and governance is tech-based entities’ frequent reliance on unmitigated collection of consumer data to augment corporate value. As author Shoshana Zuboff notes in her 2018 book, a new paradigm has emerged in which consumer data has become the end product for major companies, including Google and Facebook.Footnote 44 Similar concerns also exist within FemTech – there is enormous money to be made in selling consumer data. As these companies grow, they will need more capital, and their ability to sell consumer data to access it can become central to those efforts.
More concerning than general data collection is the nascent industry’s collection of reproductive health data of women of childbearing age. In FemTech Dystopia, authors Leah R. Fowler and Michael R. Ulrich extend Zuboff’s thesis about economic concerns of such data collection to encompass fears of state action based on such data in the post-Dobbs era. The authors raise concerns regarding state use of reproductive health care data stored by FemTech companies in abortion-related prosecutions. Similar questions around seizure of individual data by state actors have previously been raised. At one time, whether Homeland Security had the ability to require individuals to unlock their phones to allow the agency to search their contents upon entry to the country was such a question. The answer – Homeland Security has the power to do so.Footnote 45
The concerns of Fowler and Ulrich are of critical import, but there are reasonable questions to raise in response to them. In recent cases brought in state court by prosecutors where abortion bans have been issued, they have used data from non-FemTech online platforms to prosecute women for obtaining abortions and those who assist them. In July 2023, a Nebraska court sentenced a forty-two-year-old woman guilty of “tampering with human remains, false reporting and providing an abortion after at least 20 weeks of gestation” under the state’s abortion statute.Footnote 46 The prosecutions’ case, however, relied not on data pulled from a period tracker or other FemTech-related consumer data but on messages the parties exchanged on the social media application Facebook Messenger. This is likely in part because it is easier to isolate cases for investigation where there is direct communication related to prohibited conduct. Information indicative of pregnancy status can also be sourced by the state through data seemingly unrelated to reproductive health, but that nonetheless provides highly predictive indicators of pregnancy status.Footnote 47
Utilization of entire FemTech consumer data sets to seek out parties for prosecution would be more onerous than using explicit Facebook messages. Doing so would require the state to analyze enormous amounts of data held by companies, and, prior to being able to do so, access that data. In the future, quantum computing and advanced algorithmic programs will make analysis of such large data sets much easier. In the near term, however, it is easier to imagine FemTech tracked data’s use in cases where individualized data is sought through court order and used to convince juries of intent to commit a crime, especially where questions of whether a woman knew she was pregnant exist. Many FemTech companies claim they already have strong data privacy protections in place, though those claims have been questioned.Footnote 48 Other companies, in response to privacy concerns, have taken measures they claim will better protect user data. One example of such measures involves US companies moving their operations to Europe, in an attempt to subject them to the more robust data privacy standards required under the General Data Protection Regulation, or the GDPR. The GDPR, however, fails to protect user data from subpoenas and other attempts to access records by US courts and law enforcement personnel, which is at the root of post-Dobbs concerns.Footnote 49
At the end of the day, companies control the ways in which they engage with consumer data – holding it, selling it to third parties, or using it internally to create better products. In the current era, companies do not enter into contractual agreements with consumers that require them to protect consumer data from unconsented releases, whether to law enforcement or third parties. Instead, companies request users to acknowledge privacy policies. Companies can be more aggressive in placing formal obligations on their organizations; they can create legally binding and enforceable contractual terms which serve consumers whose data they access and store for research and other purposes. At the same time, these companies can mitigate the risk of financial harms and reputational damage that might result in the event of a breach of their promises to keep user data confidential. Firms that want to put their money where their corporate purpose is can seek insurance and utilize internal policies and compliance mechanisms to mitigate the risks associated with adoption of such contractual obligations.
Consumers are increasingly concerned with questions of data security. In response, Apple has begun to bend its operations toward ensuring consumer data is protected, and they have paid special attention to health-related data. As is the case in many other areas, while there are minimal protections for consumers under state and federal law, companies can use contract law to legally constrain the ways in which they collect and use sensitive consumer data.
There is an obvious tension between FemTech firms’ data collection practices and claims that they will ensure data privacy. A more nuanced tension exists between data privacy concerns and the necessity of large data sets to better understand many areas of women’s health. Data is an essential element in elevating the science in the field. These intersecting tensions between data collection, privacy, and research are likely to leave mindful consumers and the FemTech companies seeking to serve them at an impasse. Providing an individual’s data can, in addition to being a goldmine for companies, collectively advance our understanding of women’s health.
There is a case to be made that the women most vulnerable, marginalized, and likely to be surveilled by law enforcement are also the most likely to need insights that existing research and health systems fail to provide. These individuals would seem to have no reasonable alternative to advance their health other than subjecting themselves to greater surveillance through FemTech usage in an effort to create better health outcomes for the whole until public law does a better job of ensuring that for them.
13.4.2 Reconsidering Private Law Tools for FemTech Governance
Until states begin adopting binding statutory structures to ensure entities fulfill multiple purpose obligations in perpetuity, private law provides viable routes to create long-term obligations that outlive founders and protect the interests of consumers. These private law tools can also be used to devise mechanisms that leave room for internal reordering through private law structures and internal organization to entrench dual and multiple-purpose regimes for women’s health firms.
Shadow governance may provide an innovative means to ensure commitment to multiple purposes without further public law intervention. In their article Shadow Governance, authors Yaron Nili and Cathy Hwang define shadow governance as “non-charter, non-bylaw governance documents [that] express a corporation’s commitment to and process on issues.”Footnote 50 The shadow governance docket includes committee charters, governance guidelines, and codes of conduct. These more innovative and less tested mechanisms should be utilized by emerging FemTech firms to ensure a long-term commitment to their indicated corporate purposes. That being said, these types of assurances of purpose may be easily unwound after changes in Board and/or voting structure following investment. They do not require the same votes to nullify or change bylaws or other organizational governance documents, which can better entrench purpose.
Firms can also use basic contract law to entrench their multiple corporate purposes across their contracting activity and in their internal affairs. For example, companies can require Board members to agree to be bound by contractual terms at the start of their terms that require coinsideration of all purposes of the company in decision-making. One challenge with this approach is drafting language concretely defining something as amorphous as a “value.” Values shift with time, much like language, reflecting culture and other normative elements. Even explicit terms like data privacy will shift with time and public expectation. Establishing a contractual framework that aligns the concerns of FemTech companies with their obligations to consumers and third parties, and also provides some flexibility to meet the requirements of lenders and investors, is critical to cementing multiple purposes of emerging entities in the absence of statutory mechanisms. Where possible, these companies should be selective in choosing funding sources, with an eye toward ensuring alignment between corporate purposes and funder interests. Legally binding contractual agreements with funders can further entrench such alignment. In the absence of changes to public corporate law, FemTech entities must look to private law to both appropriately protect consumers and further women’s health.
FemTech is by no means a panacea. It will not correct all of the problems in women’s health. What FemTech has done, however, is to acknowledge the role private law and, by extension, private markets may need to play in correcting for extensive histories of government inaction to address the problems women face with respect to health care.
Acknowledging the limitations facing FemTech entities is a necessary step toward challenging public law and private markets to fill those gaps to create greater gender equity in accessing appropriate health care resources.
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