ABSTRACT

This article explores implications for startups, growth companies and their investors arising out of the US Supreme Court’s reversal of Roe v. Wade in the Dobbs v. Jackson Women’s Health Organization decision. The authors dive into provisions that appear in most venture capital, seed funding (including “SAFEs”), growth equity and merger/acquisition transactions to explore opportunities and risks in a post-Roe America. In particular, companies preserving the reproductive healthcare and equitable health access of their team members should consider the implications in the representations and warranties they make in investment or merger/acquisition transactions, as well as the impact on the indemnification and insurance available to them and their fiduciaries.

ARTICLE

In the wake of the United States Supreme Court’s decision to overturn Roe v. Wade in Dobbs v. Jackson Women’s Health Organization, board members, founders, investors and senior executives in startups and growth companies (for purposes of this article, we refer to all of these constituencies collectively as “Venture/Growth Leaders”) have an opportunity to shape corporate policy on reproductive rights and health access beyond those contexts, as well as risks to consider. In this article and a series to follow, we aim to contextualize the conversation about the implications of the Dobbs decision for startups and growth companies in private equity, venture capital investments, mergers, and acquisitions.

Allocating Risk in Venture Capital, Private Equity and M&A Deals: How Companies Approach Reproductive Rights for Employees

Employers are subject to a tangled web of laws at the federal and state level[1] that in turn protect and restrict access to abortion and reproductive rights for their employees. Restrictions have already proliferated post-Dobbs. In our era of remote work (especially for white-collar workers), even seed stage start-ups are likely subject to employment laws in multiple states, so the impact of divergent laws will be felt by many, if not most, venture and private equity-funded companies. These companies also employ an increasing number of people who are or can become pregnant and who need or will need protected access to abortion services and quality health care. Employers in states that enact legislation prohibiting abortions and related medical procedures will need to consider how that legislation impacts access to healthcare (and reimbursement) for pregnant persons who miscarry[4] and need a D&C,[5] who experience an ectopic pregnancy,[6] who need to terminate a pregnancy due to any of the many serious and potentially life-threatening risks associated with pregnancy[7], and who need other medical procedures, diagnosis or treatment (for instance, certain treatments for cancer,[8] rheumatoid arthritis, lupus, inflammatory bowel disease and more[9], and including now widely available prenatal testing[10]) with respect to their reproductive systems and reproductive health.[11] Abortion bans will disproportionately affect communities of color because they have lower incomes, and abortion is more common among lower income patients.[12] Numerous medical associations have issued statements condemning Dobbs, specifically enumerating this point, including for instance, the Association of American Cancer Institutes (AACI).[13]

In the aftermath of the Supreme Court’s reversal of Roe, there likely will continue to be questions about how and whether startups and growth companies are complying with reproductive rights laws.[14] At the same time, Venture/Growth Leaders will continue to be called upon to decide whether to follow the lead of major U.S.-based companies[15] in committing to support and fund necessary travel for access to abortion and other quality reproductive health services, among other actions they can take in support of their employees’ reproductive freedom and health access.

Relevance to Venture Financing and M&A Transactions

When a company is raising a venture capital or growth equity round, debt financing or when it is being acquired, that company will make representations and warranties (for brevity, we refer to these going forward as “representations”)[16] about its operations, including its compliance with applicable laws. These representations are often: (1) based on the NVCA forms[17] in venture deals, (2) based on the lender’s form credit agreement in venture debt financings, and (3) more extensively negotiated and customized by buyers and sellers in M&A deals, where the representations are often more detailed and specific. Even in the earliest stage venture, seed, and angel deals, investors often use a short form agreement called a SAFE, the model of which contains the following representation: “To its knowledge, the Company is not in violation of … (ii) any material statute, rule or regulation applicable to the Company…”

In M&A and venture/private equity deals, companies must provide responsive disclosure of any non-compliance with representations on a “disclosure schedule” to the purchase, merger or credit agreement. Failure to make good disclosure results in the borrower’s default in a venture debt financing,[18] or in the risk of post-deal allegations of breaches of representations and warranties, and/or fraud.[19] This is especially true in the M&A context, in which post-closing indemnity claims and litigation are more likely.[20] Disclosure schedules are rarely, if ever, used when investing via a SAFE and the form document does not expressly call for or reference disclosure schedules. As a result, a company making that representation in a SAFE deal typically breezes past the opportunity to provide corrective disclosure.  We would encourage Y-Combinator, which originated the SAFE, to provide updates to its forms featuring more protective language, such as that laid out below.

While preparing disclosure schedules is tedious, it is vital to enable investors, lenders and buyers to both understand their investment and assess/allocate risk. Appropriate disclosure (based on having performed due diligence) by a company, particularly in the M&A context, ensures that investors and buyers will not be able to successfully pursue[21] fraud claims against the company or the company’s officers and board members.

Reps & Warranties About “Compliance with Laws” in a Post-Roe World

Consider a representation that reads “the Company complies with applicable law in all material respects.” As legislators in some states continue to enact laws to restrict access to reproductive health care, including to abortions,[22] it may no longer be clear whether a company that enables access to abortion services for its employees can make that representation, or it may be clear that the company can no longer make that representation. In some instances, legislators may target specific employers, as Texas did in a letter to one law firm.[23] In more progressive states, legislation may lead to the opposite result, i.e., a requirement that employers provide coverage to ensure reproductive rights access, even if only within that specific state.[24] For example, after the Dobbs decision, the Attorney General of New York issued a statement reiterating:

“New York guarantees access to abortion care and prohibits discrimination and harassment for reproductive decision-making. New York requires insurance coverage of abortion and provides public funding for abortion. Abortion services in New York are confidential.”[25]

Similarly, state enforcement positions become very relevant as well. The Attorney General of Delaware, the state in which most venture and PE-backed companies are organized, has strongly condemned Dobbs, indicating a likely non-enforcement posture in Delaware.[26]

For Venture/Growth Leaders who are commited to reproductive rights of their team members, we encourage consideration of a representation more reflective of those values, such as: “the Company complies with applicable law in all material respects, except to the extent doing so would impair access to reproductive rights and health for the Company’s employees and contractors.” Alternatively, the representation could read: “The Company complies with applicable law in all material respects, provided that the Company makes no representations or warranties about its policies on health care coverage[, which are not material to this transaction].”

Making representations that allow for (or expressly disclose) broad, knowing noncompliance with applicable law will have ramifications, which could include civil or criminal liability and the potential unavailability of insurance and indemnification for the parties to the deal and their respective board members and executives. That kind of disclosure could, of course, also jeopardize or terminate an otherwise viable business deal. It is also likely to precipitate a discussion regarding values alignment and risk allocation, if that has not already been explored. We anticipate that issues of values alignment will increasingly play a role in these transactions as risk allocation regarding compliance with abortion laws becomes an accepted part of due diligence. However, in many cases, making clean representation of compliance with reproductive rights laws is inherently not viable in a transaction encompassing multiple jurisdictions as the laws in a restrictive state (for instance, Texas) may be directly at odds with those in a more progressive state (for instance, Colorado), making it impractical for a single company to simultaneously comply with both.[27]

As an alternative to the above disclosure, the disclosure could be appropriately tailored to the representation without taking a stance on whether the company’s policy and practices violate law, such as: “The Company intends to provide broad and comprehensive coverage for all necessary health services and associated costs.” While a purchaser, investor, or lender may want financial disclosure around the cost of that care, an employer may well take the position that disclosing that cost or the number of employees who have availed themselves of that policy would put those employees at risk and therefore, the employer may decline to provide that disclosure or say something more general about the costs, perhaps citing the need to maintain privacy under applicable federal and/or state pregnancy discrimination laws.[28]

It will be important to specify in the deal documents that any disclosure on the disclosure schedules does not constitute an admission that the company is breaching that representation (i.e., disclosure may be informational and not necessarily a violation of a representation, warranty or the law covered by that representation). Given the creative ways in which we expect litigants to deploy abortion-restricting legislation, it is also advisable to provide that a disclosure made on the disclosure schedules in response to one representation shall be deemed to apply to any representation to which it is or could be applicable.

Companies that desire to fund or otherwise provide access to abortion services to their employees are encouraged to disclose those policies in disclosure schedules to the extent their definitive agreements do not include broad carve outs from representations relating to reproductive rights. By making this disclosure, those companies will mitigate the risk of potential post-deal fraud claims (as discussed above), while also providing an opportunity to ascertain the alignment of values between the investor/buyer and the company’s leadership. In a future article we intend to delve further into discussion of improving alignment of governance values among Venture/Growth Leaders in any given company.

Indemnification: Who Bears the Risk in M&A/PE Deals when Venture/Growth Leaders Protect Employee Reproductive Rights

In an M&A context, disclosures against (or broad carve-outs from) representations often result in requests from buyers for specific indemnities. For example, if the buyer suffers losses after the deal as a result of a disclosed (or carved out) matter, the sellers will bear the cost of those losses. We are interested to see whether strategic or private equity buyers that have committed to protecting reproductive rights will insist on the companies they acquire bearing this risk post-closing. In other words, if a buyer with a progressive policy protecting the reproductive rights of its employees acquires a target company that had (before closing) implemented a materially similar policy, should that buyer insist that the seller bear the costs of any liability arising post-closing from the target company’s reproductive rights policies and practices. We would urge buyers to consider whether it would be inconsistent with their stated values to allocate that risk to the target company/sellers and to consider drafting that decision into the documents. We expect that third party insurers of representations and warranties (RWI) will likely exclude coverage of these matters from the policies they underwrite.[29] Should the insurers assert that RWI will not cover these claims (absent any state law requiring them to provide that coverage), it will fall to buyers, sellers and lenders[30] to allocate risk of pre-deal potential non-compliance with law in the area of reproductive rights. Strategic and financial buyers may choose to set themselves apart by proactively announcing that they will not seek representations or indemnity with respect to companies’ policies relating to support for reproductive rights and equitable healthcare access.

Protecting Employees’ Reproductive Rights After a Deal

In an M&A context, it is typical to include a provision that a buyer will continue to provide benefits to employees similar to those they enjoyed prior to the deal. The parties should consider specific references to reproductive rights in these provisions, though we note such a provision would have uncertain implications under the laws of those states that will outlaw or have outlawed abortion services. In order to clarify that the seller is factoring this protection into the equation when reviewing competing bids before entering exclusivity, sellers (and, similarly, buyers) should consider adding language to that effect into the letter of intent, as doing so would privilege reproductive rights-protective bidders in an auction. Investment bankers, who often run ‘auctions’ for the sale or financing of these companies, can similarly recommend the insertion of such a provision in the auction documents and by messaging to buyers that the company plans to consider the extent to which reproductive rights will be preserved post-deal.

Fiduciary Concerns

There are serious issues that fiduciaries of a company or fund must weigh when adopting policies to support employees’ reproductive rights and health access. Violations of laws designed to restrict abortions could potentially involve criminal and civil liability for the individual employees, the employer “aiding and abetting” the employee in procuring abortion services,[31] and the employer’s fiduciaries, which include its officers and directors. Violations of these laws could also result in the unavailability of insurance and/or indemnification for fiduciaries to defend against claims.[32] We are continuing to monitor developments in this area and intend to write further on this topic. M&A deals often involve representations and discussions of expectations about employee retention, which is key to post-deal performance. Those arguing that it would violate fiduciary duty to prioritize employee reproductive rights and health access would also be well advised to consider the importance of retention and employee health[33] (if not because it is a human right, then at least as a way of ensuring productivity), as well as the massive costs associated with dependent care, pregnancy (should an employee be forced by the government to carry an unwanted pregnancy to term, even more for unwanted high-risk pregnancies), employee medical care for conditions exacerbated/caused by unwanted pregnancy, and the likely cost of compliance with law in those more progressive States in which the employer is likely also doing business.

We expect to see more advocacy on these issues from those supportive of reproductive rights and health access, and of course, we expect continued opposition from those who seek to remove the individual and the medical professional from the decisions concerning the reproductive rights and health of the individual.

*This Article has been adapted from the article that the authors personally published on Medium on July 18, 2022. This Article has been prepared by Lowenstein Sandler to provide information of interest to our readers. It is not intended to provide legal advice for a specific situation or to create an attorney-client relationship.

Authors:

  • Meredith Beuchaw, Partner, Emerging Companies & Venture Capital (fka, The Tech Group); Venture Capital & Tech M&A; Mergers & Acquisitions, Lowenstein Sandler LLP
  • Alyssa A. Frederick, Partner, Emerging Companies & Venture Capital (fka, The Tech Group), Lowenstein Sandler LLP
  • Ed Zimmerman, Partner; Chair, Emerging Companies & Venture Capital (fka, The Tech Group), Lowenstein Sandler LLP
  • Kelsey Repka, Associate, Corporate, Lowenstein Sandler LLP
  • Rossie E. Turman III, Partner, Debt Financing; Emerging Companies & Venture Capital (fka, The Tech Group), Lowenstein Sandler LLP

ENDNOTES

[1] Melanie Evans, Doctors Struggle with State Abortion Restrictions at Odds With Federal Law, Wall St. J., (Jul. 10, 2022, 10:22 PM EDT).

[2] Keeanga-Yamahtta Taylor, Abortion Is About Freedom, Not Just Privacy, New Yorker (Jul. 6, 2022). See also Dahlia Lithwick & Neil S. Siegel, Jurisprudence: The Lawlessness of the Dobbs Decision, Slate (Jun. 27, 2022), (Clarence Thomas’s concurrence in Dobbs expressly states that “the court’s contraception, same-sex intimacy, and same-sex marriage decisions are ‘demonstrably erroneous’ and that ‘we have a duty to ‘correct the error’ established in those precedents.’”).

[3] Thomas’s Dobbs concurrence unambiguously places a judicial target on access to, for instance, birth control pills. Notably, “25% of women aged 15–44 who currently use contraception reported using the pill…” Danielle B. Cooper, Preeti Patel & Heba Mahdy, Oral Contraceptive Pills, Nat’l Ctr. for Biotechnology Info. (Feb. 26, 2022). “OCP’s can be used to address other health conditions, particularly menstrual-related disorders such as menstrual pain, irregular menstruation, fibroids, endometriosis-related pain, and menstrual-related migraines.” Id. In fact, oral contraceptives have been shown to be enormously effective: “Strong epidemiologic evidence supports a 50% reduction in the risk of endometrial cancer among women who have used combined OCs compared with those who have never used combined OCs. This effect lasts for up to 20 years. Combined OC use decreases the risk of ovarian cancer by 27%; the longer the duration of use, the greater the risk reduction. OCs have also been reported to reduce the risk of colon cancer by 18%.” Id.

[4] “Miscarriages could be investigated as murders, which has already happened in several states, and may become only more common.” Editorial Board of the New York Times, The Ruling Overturning Roe Is an Insult to Women and the Judicial System, N.Y. Times (Jun. 24, 2022). See also “The laws that are in effect are often confusing and unclear, and doctors warn that is likely to affect care beyond abortion, including miscarriage care and treatment for ectopic pregnancy and more.” Selena Simmons-Duffin, Doctors Weren’t Considered in Dobbs, but Now They’re on Abortion’s Legal Front Lines, Nat’l Pub. Radio (Jul. 3, 2022).

[5] “Patients who have a miscarriage also sometimes need to take abortion medication or have dilation and curettage surgery — known as a D&C — to remove tissue that lingers inside the uterus.” Victoria Knight, Rachana Pradhan, & Julie Rovner, Five Things to Know Now That the Supreme Court Has Overturned Roe v. Wade, Kaiser Health News (Jun. 24, 2022).

[6] “To take an obvious example, some states do not explicitly permit abortion in cases of ectopic pregnancies, which are life-threatening to the pregnant person and never result in a live birth.” JessicaWinter, The Dobbs Decision Has Unleashed Legal Chaos for Doctors and Patients, New Yorker (Jul. 2, 2022).

[7] See, e.g., What Are Some Common Complications of Pregnancy? Nat’l Inst. of Health, (last visited Jul. 12, 2022). Notably, bans with exceptions only to save the pregnant patient’s life put medical professionals in the position of wondering how much the patient’s health must deteriorate before the pregnancy will be considered life-threatening, and whether their professional medical judgment will result in criminal prosecution. See, e.g., Mary Kekatos, Why Doctors Say the ‘Save the Mother’s Life’ Exception of Abortion Bans Is Medically Risky, ABC News (Jun. 3, 2022, 6:03 AM).

[8] See, e.g., “In some cases, cancer treatment requires access to abortion. For example, chemotherapy is not safe in the first trimester and some other cancer therapies are unsafe at any stage of pregnancy. The decision to terminate a pregnancy in order to pursue cancer treatment should rest with the patient and their treating physician. AACI supports timely access to effective treatment for all patients with cancer, regardless of pregnancy status.” Statement on Dobbs v. Jackson Ruling, Assn. of Am. Cancer Inst. (Jul. 2022). See also Lisa H. Harris, Navigating Loss of Abortion Services — A Large Academic Medical Center Prepares for the Overturn of Roe v. Wade, New Eng. J. Med. (Jun. 2, 2022)(Article predates Dobbs, noting: “When we diagnose a new cancer during pregnancy, some patients decide to end their pregnancy to permit immediate surgery, radiation, or chemotherapy, treatments that can cause significant fetal injury. Will abortion be permissible in these cases, or will patients have to delay treatment until after delivery? These patients’ increased risk of death may not manifest for years, when they have a recurrence that would have been averted by immediate cancer treatment.”).

[9] Patient advocacy groups have, for instance, focused on the restriction on access to certain drugs that are used to medically induce abortion, but have other uses, such as treatment for rheumatoid arthritis. Elisabeth Mahase, US Anti-abortion Laws May Restrict Access to Vital Drug for Autoimmune Diseases, Patient Groups Warn, BMJ (Jul. 6, 2022).

[10] “The ability to learn about the genetic health of one’s future child might also change in abortion-restrictive states. Currently, prenatal testing and screening are offered to all pregnant patients. In the last decade, a noninvasive and highly sensitive first-trimester test that screens for Down syndrome and other chromosomal anomalies has vastly expanded the reach of prenatal testing.” Sonia M. Suter, Jurisprudence: All the Ways Dobbs Will Harm Pregnant Women, Whether or Not They Want an Abortion, Slate (Jun. 29, 2022).

[11] See, e.g., the impact of abortion bans on access to primary and preventative care for people who may become pregnant, which will disproportionately impact lower income people and people of color: “[I]n many states, the number of reproductive health clinics performing abortions has already declined, and more will disappear as a result of the Dobbs decision, further limiting access to primary health care and preventative screenings.” Keon L. Gilbert, Gabriel R. Sanchez, & Camille Busette, Dobbs, another Frontline for Health Equity, Brookings (Jun. 30, 2022).

[12] See generally Jenna Jerman, Rachel K. Jones & Tsuyoshi Onda, Characteristics of U.S. Abortion Patients in 2014 and Changes Since 2008, Guttmacher Inst. (May 2016).

[13] Assn. of Am. Cancer Inst., supra note 8 (“[r]estricted access to abortion services disproportionately impacts communities of color, sexual and gender minorities, residents of rural communities, and other groups that experience cancer disparities. As state leaders weigh the implications of the Supreme Court decision, we urge them to consider its ripple effects on access to quality cancer prevention, screening, and treatment services.”).

[14] As our colleagues have written, “The Employee Retirement Income Security Act of 1974 (ERISA), the federal law that governs employee benefit plans, generally preempts state laws to the extent the state law “relates to” an employee benefit plan.” Accordingly, there may be arguments that federal law preempts state restrictions here, which is beyond the scope of this article. See Andrew E. Graw, Julie Levinson Werner & Batool T. Banker, Client Alert: Employer-Paid Travel Assistance for Abortion Access, Lowenstein Sandler LLP (Jun. 29, 2022).

[15] Emma Goldberg, These Companies Will Cover Travel Expenses for Employee Abortions, N.Y. Times (Jun. 30, 2022).

[16] Numerous commentators have explained the difference between “representations” and “warranties.” In general, “the representation, which is a statement of past or present fact, is taken to be coupled with a promise that the statement is true (i.e., a warranty).”[A]nd the two are customarily combined in the agreements about which we are writing. See, e.g., Robert T. Miller, Rule 10b-5 and Business Combination Transactions, 21 U. Pa. J. Bus. L. 533, 556 (2019).

[17] The National Venture Capital Association (NVCA) is an organization that represents the U.S. venture capital and startup community, advocating for policies that support “the American entrepreneurial ecosystem” (About Us, Nat’l Venture Capital Assn. (last visited Jul. 7, 2022)). The NVCA works with industry leaders to develop model legal documents to be used in venture capital financings (Model Legal Documents, Nat’l Venture Capital Assn. (last visited Jul. 7, 2022)).

[18] In a venture debt financing, the risk of accelerating the related debt is typically of greater concern than the potential of a fraud litigation. Acceleration of debt is one of the potential remedies a lender has in an event of default resulting from the borrower’s breach of a representation or warranty.

[19] In an M&A context in particular, definitions of fraud are heavily negotiated. In some cases, parties to an agreement may agree, or courts may find, that fraud is not limited to fraud with scienter (knowledge of wrongdoing by the party committing fraud). In addition, parties may agree to include a “10b-5” representation that asserts that all material information has been shared with the buyer (see Employment of Manipulative and Deceptive Devices, 17 C.F.R. § 240.10b-5 (2018)). As a result, M&A lawyers stay up nights fretting that their clients may trip unintentionally into fraud by failing to disclose a material item in disclosure schedules.

[20] In the venture financing context, especially in the early stages, the risk of post- transaction litigation is practically very low, as individual buyers tend to purchase minority stakes in a company that they hold until the sale or IPO of the company, and so venture funds have a strong incentive to function as collaborative partners with their entrepreneurs.

[21] It is, of course, extraordinarily difficult to prevent someone from filing suit, even a frivolous suit, which is why we focus on maximizing the likelihood that even were such a suit filed, the fraud claims would likely fail. See generally Miller, supra note 16.

[22] See, e.g., the Guttmacher Institute’s “state legislation tracker for policy activity on all sexual and reproductive health topics,” noting for instance that as of June 2022, legislation that “Bans Abortion by Establishing Fetal Personhood” had been introduced in 6 States (last visited Jul. 9, 2022).

[23] On July 7, 2022, the inappropriately named “Texas Freedom Caucus” wrote to Sidley Austin LLP that, among other things: “It has come to our attention that Sidley Austin has decided to reimburse the travel costs of employees who leave Texas to murder their unborn children. It also appears that Sidley has been complicit in illegal abortions that were performed in Texas before and after the Supreme Court’s ruling in Dobbs v. Jackson Women’s Health Organization, №19–1392. We are writing to inform you of the consequences that you and your colleagues will face for these actions.” (Emphasis supplied). See, e.g., Andrew Maloney, Sidley and Law Firms Get Warning from Texas Lawmakers on Abortion Pay Policy, Am. Law. (Jul. 8, 2022, 6:21 PM).

[24] As of July 1, 2022, seven states require abortion coverage in private insurance plans (California, Illinois, Maine, Maryland, New York, Oregon and Washington. Regulating Insurance Coverage of Abortion, Guttmacher Inst. (Jul. 1, 2022).

[25] “Attorney General James Issues Advisory Reminding New Yorkers Abortion Is Legal and Protected in New York State: Following Supreme Court Decision Overturning Roe v. Wade, AG James Advises New Yorkers of Their Rights Under the Reproductive Health Act of 2019.” Attorney General James Issues Advisory Reminding New Yorkers Abortion Is Legal and Protected in New York State, Off. of the N.Y. St. Att’y Gen. (Jun. 24, 2022).

[26] Statement from Attorney General Jennings on Dobbs Ruling, Del. Dept. of Just. (Jun. 24, 2022).

“While Delaware has robust statutory protections in place for abortion — and I am more grateful by the day that our legislators and advocates had the foresight to install those safeguards — the truth is that this ruling is a terrifying prospect for millions of people in other states… these laws will disproportionately harm the working poor and people who already have children and may face economic destitution as a result of this ruling.

Those of us who’ve spent our lives fighting to preserve this central right have not been alarmist. And we can be sure that other rights that we’ve taken for granted, including contraception and marriage equality may be next.”

[27] “Colorado is one of the few states where abortion access is protected by state law, but it’s surrounded by states like Texas, Utah and Wyoming, which have all restricted or plan to restrict the procedure.” Matt Bloom, Colorado’s Abortion Clinics Work to Protect Patients and Staff as Threats Increase Nationally, Colo. Pub. Radio News (Jul. 12, 2022). See also Saja Hindi, Colorado won’t Cooperate with Abortion Investigations in Other States, Gov. Jared Polis Says in New Executive Order, Denver Post (Jul. 6 2022). For the Texas enforcement posture, see, e.g., See Jacqueline Thomsen, Texas Lawmakers Target Law Firms for Aiding Abortion Access, Reuters (Jul. 8, 2022, 7:19 PM EDT).

[28] See, for instance, the federal Pregnancy Discrimination Act of 1978 (which, quite logically, amended the Civil Rights Act of 1964, as reproductive rights are civil rights) (42 U.S.C. §§ 2000e et seq.); N.Y. Human Rights Law §296 (2022); California’s Fair Employment and Housing Act, which has its own anti-discrimination provisions and also contains the California Pregnancy Discrimination Act (Cal. Gov’t Code §§ 12940–12957(1980)). The implications from a privacy (including, but not limited to HIPAA) compliance and liability perspective are outside the scope of this article.

[29] Our allies in the European Union voted by supermajority to condemn the Dobbs decision and its implications for reproductive health access in the States.  See, e.g., Ivana Saric, EU Parliament Votes to Condemn Overturning of Roe v. Wade, Axios (July 7, 2022) (“The European Parliament voted 324–155, with 38 abstentions, to condemn the U.S. Supreme Court’s overturning of Roe v. Wade and demand that abortion rights be enshrined in the EU’s fundamental rights charter.”).

[30] By virtue of limited conditionality in lender financing commitment documents, also known as “SunGard” provisions, lenders are by extension expected to accept the buyer’s risks.

[31] Our colleagues have written that “some reports have raised the prospect of a state asserting ‘aiding and abetting’ criminal laws to punish employers that pay the travel costs of workers crossing state lines to access an abortion procedure…” Graw, Werner & Banker, supra note 14.

[32] Note that indemnification for fiduciaries often is preconditioned on the indemnified officer or board member providing a written undertaking committing to repay any indemnification or advancement of expenses if a court later determines that the company or fund should not have provided that indemnity. See, e.g., Del. Gen. Corp. L. §145(e).

[33] “The U.S. has a higher rate of maternal mortality than Canada, the U.K., and eight other European nations.” Taylor, supra note 2.