Dobbs v. Jackson Women’s Health Organization, 579 U.S. 2228 (2022), meant that the ability to choose an abortion was no longer a right protected under the U.S. Constitution. Instantly, pre-existing bans or extreme limits on abortion in some states went back into effect, and other states adopted new bans and restrictions. This is likely not news to readers of this blog. What likely will be news—and useful news at that—is that labor law may help both unionized and non-unionized workers fight for and achieve abortion-related benefits at the workplace. Jeffrey Hirsch’s Labor Law’s Impact on the Post-Dobbs Workplace is a timely, informative, and well-balanced approach to this issue that I recommend to anyone interested in the intersection of workplace rights and reproductive rights.
Hirsch starts by noting that “[a]ccess to abortion and other health care depends on employers to an unappreciated degree.” That’s because most health insurance is provided by employers. Further, employer policies involving leave and scheduling can also affect abortion access.
He then shows how labor law can help non-unionized employees. Specifically, Section 7 of the National Labor Relations Act (NLRA) gives all employees it covers the right to engage in “concerted activities for . . . mutual aid or protection.” This section protects all employees the NLRA covers, not just those in or trying to form unions, when they act together on matters relating to wages, hours, and working conditions. This right is not as well-known as it should be, but it provides protections for workers advocating for, e.g., employer-provided benefits relating to abortion.
Hirsch describes the basic rules for what constitutes “concerted” and “protected activity,” and how this advocacy could bring better abortion-related rules, including health insurance coverage, leave, travel benefits, and privacy protections. Hirsch delves into the details of each type of benefit. For example, he notes that the AFL-CIO has published model collective-bargaining agreement language for abortion benefits. Also, while there is little precedent on non-unionized employees pressing for privacy protections Section 7, he argues convincingly that it should be covered.
The article then explores another interesting issue under Section 7: political activity designed to elicit employer support. While it’s clear that Section 7 covers activity such as political support for a raise in the minimum wage, other types of political activity (such as “A Day Without Immigrants” protests) create closer questions as to whether they have sufficient connection to workplace issues. Political activity aimed to garner support for specific employment benefits will likely be covered; protests of laws limiting abortion access are less likely to be (although as always, in close cases, rulings may well depend on which party holds a majority on the National Labor Relations Board).
The article then discusses unionized employees. Such employees have a right to bargain collectively about many possible employer-provided abortion benefits. Hirsch notes a few possible proposals that could raise issues over whether the topic was a mandatory subject of bargaining. The most interesting and important of these, I believe, is the issue of whether travel benefits for abortion would be considered an illegal subject of bargaining in states with laws that purport to make travel for abortion illegal. Hirsch notes that such laws may well not withstand constitutional scrutiny. But unless and until such a law is struck down, a union’s only argument would be NLRA preemption. And Hirsch fairly concludes that the preemption argument may not be a winner.
This is an excellent piece. In the spirit of continuing this important conversation, I wonder whether the scope of NLRA coverage limits the respects in which labor law might usefully protect abortion access for workers. While the NLRA covers most private-sector employees in the U.S., it has some significant exclusions. Hirsch mentions that supervisors and independent contractors are excluded. Given the increasing number of women in both higher-level positions and classified as independent contractors, this is a limitation on the NLRA strategy.
More broadly, as those who know me would predict I would say, the NLRA excludes public employees. I will note that many states have public-sector labor laws that grant covered employees’ rights similar or identical to NLRA Section 7 and collective bargaining rights. However, a number of states do not provide robust labor rights to most or all public employees. Not surprisingly, there is a significant overlap between the states that do not provide robust union rights for public employees and those that have imposed significant restrictions on abortion rights (for example, Texas). But in the many states that do give robust bargaining rights to public employees, Hirsch’s discussion would be equally relevant (except for the preemption issue).
I would also have been interested in Hirsch’s thoughts on “internal union politics” issues in this area, assuming not all local unions will have majorities in favor of these rights. But overall, Hirsch makes a valuable contribution by suggesting a potentially very useful tool that reproductive rights advocates should be aware of. I liked this article a lot and I look forward to reading more from Hirsch and others writing on this topic.
