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Tina Casey headshot

Corporate DEI and the Bystander Effect in the Age of Court-Stacking

By Tina Casey

Protestors in front of the U.S. Supreme Court on May 3, after a leaked draft opinion showed the court was preparing to overturn Roe v. Wade.

The political leanings of U.S. Supreme Court justices are not a matter of routine discussion in corporate DEI (diversity, equity and inclusion) meetings. However, they should be, they must be, and they will be if business leaders really are serious about their responsibility to ensure diversity, equality and inclusion in the corporate family. Or was DEI always just a joke, all along?

How to sidestep the bystander effect

Activists seeking to ban abortion have held the rhetorical cards for far too long, thanks in part to business leaders who stood by while phrases like “right to life” and “pro-life” set the terms of debate.

Business leaders can begin to take action by defining abortion in the context of their DEI programs. Rather than getting distracted by arguments over the beginning of life or the legal status of a fetus, employers can —  and should —  insist that the anti-abortion movement is rooted in an extremist religious belief, not a civic one.

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As a matter of social morality, legal principle and medical ethics, it is generally agreed that society has interest in fetal life, limited to the advanced stages of pregnancy.

In contrast, the idea that society has an unlimited interest in preserving the existence of a zygote, embryo or fetus is of apiece with fundamentalist theory. It places men at the center of the decision-making universe and while treating everything else having to do with gender, sexuality and sexual identity as sins to be quashed. In short, it is the complete opposite of DEI.

In the context of DEI programs, the idea that non-believers should be held to an extremist position on pregnancy is as ridiculous as the notion that everyone in a company should be forced to adopt the behavior and clothing of a particular religion, whether or not they identify with that religion.

Calling out the anti-pregnancy movement

It is high time for employers to take control of the rhetoric and call the “pro-life” movement by its real name.

Unlimited social and legal control over an individual person’s pregnancy is not pro-life. It is anti-pregnancy. It stigmatizes all pregnancies, by identifying the womb as a human organ under community ownership, to be monitored and controlled by any passing stranger.

The anti-pregnancy movement reduces all pregnant people to a less than human status. Regardless of the risk to their health, life and safety, their right to self-determination is superseded by community control over their womb.

The resulting picture is about as ugly as it can get, for everyone. Every pregnant person is literally reduced to a community-owned vessel. Under this regimen, even those who plan their pregnancy and carry it to term are vulnerable to constant surveillance, harassment and stalking.  

The social bulldozers are coming for your DEI program

Against this backdrop, business leaders are deluded if they think they can wall off their DEI programs from the outside world.

That is made abundantly clear by the authenticated draft opinion of the Supreme Court attributed to Associate Justice Samuel Alito, which was leaked to the news organization Politico last week. In the draft, Alito outlined the fundamentalist case for overturning Roe V. Wade and other pregnancy rights precedents.

Court watchers quickly pointed out that the opinion does not stop at pregnancy rights. It upends decades of decisions affirming privacy rights of all kinds. As written, the draft opinion threatens the right to contraceptives along with marriage equality and LGBTQ+ protections, among other areas.

A nationwide ban on abortion could also be the ultimate outcome of the Alito opinion, forcing the anti-pregnancy movement onto states where privacy rights have long been respected.

Yes, let’s talk about ethics at the U.S. Supreme Court

The leaked draft has sparked a torrent of outrage, which Chief Justice John Roberts and his Republican allies in Congress have tried tamp down by expressing their outrage over the ethics of leaking an internal Court document to the public.

So, let’s have it. Let’s have that discussion about ethics at the Supreme Court. That discussion is long overdue, considering the conflict of interest issues swirling for years around Associate Justice Clarence Thomas.

The apparent power of a single executive at The Federalist Society to influence the confirmation process under multiple Republican presidents is another ethics issue that should be under discussion.

Also in need of a thorough airing is the successful effort by Republicans in the Senate to pack the court with justices vetted by The Federalist Society. In 2016, the Republican majority in the Senate blocked former form president Obama from exercising his authority to nominate Merrick Garland for a seat left vacant by the death of Associate Justice Antonin Scalia. That exercise in pure partisanship enabled former president Trump to replace Scalia with another Federalist Society conservative, Neil Gorsuch, after he took office in 2017.

In 2018 the rather abrupt and unexplained decision of Justice Anthony Kennedy to retire cleared the way for Trump to nominate Brett Kavanaugh as a younger, more reliably conservative replacement. Trump and Republicans in the Senate also rushed a third conservative nominee, Amy Coney Barrett, onto the court just days before the U.S. presidential election of 2020, after Ruth Bader Ginsberg died on September 18 of that year. The effort to install Barrett compressed a normally months-long process into weeks, but apparently that did not raise any ethical red flags in the Roberts court.

In addition, reporters have been scrolling back through confirmation hearings, during which several of the conservative nominees implied that overturning the right to privacy was not on their judicial radar, leading to accusations that some of them outright lied to members of the Senate. Apparently, that is not a breach of ethics, either.

What’s a corporate leader to do?

The leaked draft is actually a good thing. It has finally brought the true agenda of the anti-pregnancy movement into the sphere of public discussion. It has cleared the way for corporate leaders to mark their ground on diversity, equality and inclusion in no uncertain terms.

Either employers support DEI, or they don’t. Either they defend their employees against the anti-pregnancy movement, or they don’t.

A pro-pregnancy movement did begin to take shape among corporate leaders three years ago, when a group of companies took out a full-page ad in The New York Times to protest a growing torrent of state-based anti-pregnancy laws.

Clearly, that movement needs to step up to the next level. Offering to support and protect employees impacted by state based anti-pregnancy laws is a good start, but more is needed. Corporate leaders need to stop supporting candidates and legislators who seek to undermine the basic principles of a modern democratic society. 

The only answer now is money, and plenty of it, directed away from anti-pregnancy politicians, and towards allies in state legislatures and the U.S. Congress, who uphold the principle that control over one’s pregnancy is a basic human right.

Abortion is a necessary feature of individual self-determination and equality under the law, regardless of what religious extremists profess to believe.

Image credit: Ian Hutchinson via Unsplash

Tina Casey headshot

Tina writes frequently for TriplePundit and other websites, with a focus on military, government and corporate sustainability, clean tech research and emerging energy technologies. She is a former Deputy Director of Public Affairs of the New York City Department of Environmental Protection, and author of books and articles on recycling and other conservation themes.

Read more stories by Tina Casey