Why companies like Amazon and Starbucks face challenges helping employees get abortions

Since the leak of the Supreme Court’s draft opinion suggesting the nation’s highest court will overturn Roe v. Wade – and end the federal constitutional protection for abortions – companies including Amazon , Salesforce, Starbucks, Citigroup and Yelp have announced expanded benefits for abortion access for their employees.

The big question that remains to be answered, however, is to what extent these companies will actually be able to follow through with their promises to workers in states where abortions are likely to be restricted or banned.

Miriam Warren, chief diversity officer for Yelp told MSNBC that it was discontent among Yelp employees about the potential overturning of Roe v. Wade that catalyzed the company to take action. Like several other big companies, Yelp has said it will cover expenses for its employees and their dependents who need to travel to another state for abortion services.

“Our employees have told us time and again that access to reproductive healthcare is important to them,” said Warren. “It’s important to their families and it’s important to them that Yelp speak out on this issue and take a stand.”

So far, the news has been positively received by Yelp employees. “We had an employee in the state of Oklahoma say ‘I’m so glad that I received this message from Yelp today, because I live in a state where this is real to me. It’s not simply a stance on a social issue, this could potentially affect my life,’” Warren recounted.

But as the reality of the disintegration of Roe v. Wade becomes more imminent, companies may have a harder time dodging legal challenges.

Mark Stern, a senior writer covering courts and the law for Slate Magazine, noted such companies may face investigation or a lawsuit in state court, which can often result in excessive legal fees.

“The deck is already really stacked against facilitating abortion. The folks who wrote these laws thought about this possibility. They knew that there would be an effort among some employers to protect their workers, and they wrote these laws to make it as difficult as possible for employers to do so without facing legal liability,” said Stern.

Currently, there are only two states that have enforceable abortion bans, Texas and Oklahoma, while states like Arizona and Florida are set to have enforceable 15-week abortion restrictions later this summer. But if Roe v. Wade is ultimately overturned, experts said there are going to be a lot more states that enact these kinds of laws.

Stern explained, civil laws (which allow people to go after those who facilitate abortions) will also likely come into play. “At that stage we’re going to see, I think, a lot more lawsuits and a lot more threats of suits as the number of states where employees can even fly to or travel to terminate a pregnancy gets smaller and smaller.”

Still, there may be loopholes for companies who want to continue providing benefits.

For example, Evie Jeang, a licensed attorney and founder of Ideal Legal Group, said a company may still be able to aid in benefits for access to abortion to their employees if they classify the employee assistance aid under maternity or fertility benefits, which both fall under health benefits. It’s a situation similar to companies that provide fertility benefits, such as surrogacy or assisted reproduction technology, where surrogacy is not legal in every state.

And then, of course, there is the likelihood that conservative lawmakers may retaliate, providing an even bigger hurdle for employees who need abortion services. Republican Sen. Marco Rubio of Florida, for example, recently introduced a bill that would ban companies from deducting abortion-related travel benefits as regular employee benefits when a company files its taxes.

Joyce Vance, a former U.S. attorney and professor at the University of Alabama School of Law, said one of the biggest questions in red states is how vigorously they’ll try to find criminal complicity in businesses and to what extend that will drive businesses away. “If you’re in Alabama, a state that fought so hard to bring Amazon in or that fought so hard for Mercedes and Toyota, do you really want to drive them out of your state?,” Vance asked.

Vance said conservatives may also play on fear. “They don’t have to prosecute every woman who gets an abortion,” she said. “You only have to prosecute one or two to create a climate of such fear that no one will help these women and the women themselves will be afraid…”

In terms of potential legal battles on the horizon, some companies like Yelp say they are prepared for what comes their way.

“As far as legal complications go, we will have to take the challenges as they come,” said Warren.