Ambiguities in Texas’s abortion ban are making it harder for businesses in the state to recruit, a coalition of businesses argued on Thursday.
Fifty-one businesses have signed onto an amicus brief filed by in-house counsel at dating site Bumble, which was filed in support of 22 women suing the state over the abortion ban.
The plaintiffs in that case — Zurawski v. Texas — are 20 former patients who argue that they were denied medically necessary abortions because physicians were afraid of legal consequences.
As a tech company largely run by women, Bumble CEO Whitney Wolfe Herd said she feels it has a duty not just to provide access to health care, “but to speak out – and speak loudly – against the retrogression of women’s rights.”
The businesses signing onto the letter — which include dating sites Bumble and Match Group (the parent company of Match.com and Tinder), advertising giants Preacher and GDS&M, event organizers SXSW and the United States Women’s Chamber of Commerce as well as dozens of Texas real estate, law firms and restaurant groups — argued that the state’s abortion laws make it unattractive for families looking to move to a place where they can have children.
In the wake of the Supreme Court decision overturning Roe v. Wade, Texas has enacted a near-total ban on abortion after a fetus has a heartbeat, which typically occurs around 6 weeks into pregnancy and often before a woman knows she is pregnant.
After that point, the state allows the procedure only when it’s deemed medically necessary — an exception that the Zurawski plaintiffs, and others, argue is overly ambiguous and has not translated into legal abortions in the real world.
The uncertainty in those laws “has impacted, and will continue to impact, companies doing business in Texas, companies thinking about doing business in Texas, employees living in or traveling to Texas, and individuals considering relocating to Texas,” the letter reads.
“Because of those undeniable realities, businesses are now forced to confront this issue head on — not for moral or legal reasons — but to keep the lights on and people working, making money,” it continues.
“No sector of the Texas economy is immune.”
The state’s GOP leadership has sought to attract transplants from other states to Texas, which it has cast as a pro-business, small government paradise: a place with no income tax and consistent local regulations and where parents’ rights in schools reign supreme.
But the Bumble letter draws together case studies of prospective transplants — including oil company executives — who decided against moving to Texas based on their desire to start a family.
It also emphasizes the risk felt even by women who are visiting the state on business — or for the lucrative professional conventions that Texas cities compete to attract.
In 2023, for example, the Society of Women Engineers (SWE) — an organization with 40,000 members — announced it would not hold conferences in “any location where there are limits on reproductive” healthcare, a list that incudes Texas.
SWE was joined in this move by other professional societies, like the Society for Integrative and Comparative Biology, and the Journal of Urology, which cited the duty of conference organizers “to reasonably ensure female urologists can safely attend without the threat of catastrophic health consequences.”
The Bumble filing draws on research that found that nearly half of young women in nine battleground states are considering or making plans to move to a state with “comprehensive protections” for reproductive healthcare, and nearly two-thirds of college educated workers nationwide would not consider a job in a state with abortion restrictions.
To make matters worse, women and their doctors don’t have a clear picture of what conditions are exceptional enough to allow them to secure abortions under the exception for medically necessary cases, filing author Sarah Stewart of law firm Reed Smith told The Hill.
“The Zurawski question is: what standard doctors need to meet? Is it good faith medical judgment or something else?” Stewart asked.
Stewart added that the inherent complication and unintended consequences that attend pregnancy make a set-it-and-forget-it list of exceptions untenable. “If it’s an objective standard, then the state will always be able to come up with another doctor who will testify that the abortion wasn’t necessary — so that brings no comfort, and no clarity and certainty to the doctor,” ” she told The Hill.
In essence, Stewart added, the exceptions leave state doctors in the same place as an explicit ban, only now “with the threat of very severe consequences if it turns out that they guessed wrong.”
All this means that the abortion ban is costing the state $15 billion per year in lost revenue as qualified candidates go elsewhere and women of childbearing age stay out of the workforce, according to a 2021 report by the Institute for Women’s Policy Research cited in the Bumble letter.
The businesses that signed on to the Bumble filing argue that these costs are falling on them. To draw people to states where abortion bans are in place, businesses are now having to beef up their medical policies to pay for travel so that employees can get reproductive healthcare outside the state, the letter notes — something that corporations from Microsoft and Disney to Google and Wells Fargo now offer.
Critics of Texas’s abortion laws, passed in 2021 and 2022, have pointed to the disjunction between the start-point of the state’s ban and the timeline when most women learn they’re pregnant as a troubling source of uncertainty.
The Bumble letter — and the broader Zurawski challenge it is a part of — emphasize that the laws’ cut-off point also conflicts with another timeline: the one when some women with badly wanted pregnancies receive the brutal news that their fetuses have serious medical conditions.
The state’s ban kicks in long before parents get such news.
For example, genetic testing — which can reveal lethal fetal abnormalities like trisomy 13, Tay Sachs or anencephaly — can only be performed after about 10 weeks of pregnancy.
That testing is how Kate Cox — the Dallas-area woman at the center of a court battle over the ban who just fled Texas to secure an out-of-state abortion — found out roughly 20 weeks into pregnancy that the fetus she was carrying had trisomy 18, a rare and generally fatal condition that leads to rampant abnormalities throughout the body.
Like many of the Zurawski plaintiffs, Cox was told by her doctors that her health would be at risk if she didn’t get an abortion — but she was unable to obtain the procedure under the state’s ban despite it’s exception for medically necessary cases.
The standard for this exception, Zurawski plaintiffs argue, is dangerously unclear, and the penalties for doctors who get it wrong are very high. Those can include felony charges of up to 99 years in prison, civil fines of up to $100,000 and — even if the state ignores the case — potential lawsuits under Senate Bill 8 from any private citizen who feels the abortion was unnecessary.
That’s a restrictive understanding of the ban — but also one the Texas Supreme Court seemed to affirm in Cox’s case.
The court ruled on Monday evening that protections are available to doctors who perform abortions only if the mother’s life is definitely at risk, and that since Cox’s doctor had not used the phrase “life-threatening physical condition” in the filing that sought to secure her an abortion, she had not met the standard.
Similarly to Cox, Zurawski plaintiff Lauren Hall had to travel to Washington to get an abortion after her fetus was diagnosed with anencephaly — a fatal condition in which a fetus develops without a skull or brain.
In that case, Hall recalled to The Texas Tribune, her doctor advised her to sneak out of state.
The state legislature in 2023 passed some reforms allowing abortion in limited cases. But the court’s Monday ruling on Cox’s case strongly implies that little has changed in the law’s practical application since Hall’s flight.
Cases like those tell women thinking of a move to Texas that the state is “fundamentally unserious” about protecting women and newborns, said Rachel O’Leary Carmona, executive director of Women’s March.
O’Leary Carmona said that dynamic is particularly clear when the abortion ban is stacked up against Texas’s high maternal mortality rate and its lack of mandatory paid maternity leave or state support for recent mothers.
“There’s not any demonstrable policy that deals with the issue of actually giving women the support that they need to have to have a reasonable choice to become a mother,” she added.
The Bumble letter echoed those concerns. As medical practitioners leave Texas to avoid being caught in its abortion ambiguities, it’s creating a feedback loop “that further pushes away business and workers,” Stewart wrote.
Cox’s case, she said, “are why businesses will continue to struggle to recruit and retain talent. This is why pregnant women from other states are hesitant to travel to Texas for business meetings. This is why doctors are leaving the state.”
“This is why our economy is taking a hit.”
— Updated at 12:39 p.m.
