Companies don’t want to hear this, but they must choose sides — and states. The Supreme Court just imposed a right-wing rights-tax on businesses in America, which now must immediately decide and declare: are you pro-fundamental rights, or anti-rights?

The Supreme Court is taking away long-standing individual rights for the first time in American history, starting with Roe. Contraception, same-sex relationships and marriage,  inter-racial relationships and marriage and other fundamental human rights could be next as this court imposes its vision of 1950s values on the country.   

As marketing executive Graydon Gordian writes, “Roe. Miranda. Gun control. Church and State. All dismantled in a single week. The single worst week for civil rights and liberties in decades.” Bloomberg’s Noah Feldman says, “It’s open season on fundamental rights.” 

For now, states still have the ability to protect those rights, which means that the country is rapidly disintegrating into “pro-rights” and “anti-rights” states. Half of all states are on a path to “forced-birth” status, completely outlawing abortion 

America is “rapidly growing apart, potentially for good,” Ronald Brownstein writes in The Atlantic. The implications are ominous overall; writing in The Guardian, historian Stephen Marche says “With the end of Roe, the U.S. edges closer and closer to civil war.”

This is terrible for business in America — more barriers means more friction, the bane of market efficiency. This new “rights tax” from the right wing just raised the cost of doing business in America for everyone. More fundamentally, businesses now must choose to support either pro- or anti-rights states. 

Why do companies need to choose?

Their employees and customers will insist. “Societal leadership is now a core function of organizational leadership,” according to the most recent Edelman trust barometer, which points out that businesses remain the most trusted institutions in America. Folks expect businesses to fight for democratic values.

As Dealbook said Sunday in the New York Times, “This  is the time of reckoning” for American businesses. 

At the same time, ties between employees and organizations are more tenuous than ever. In the new post-COVID,  more hybrid world of work, individuals are prioritizing mental health, balance and values ahead of “the job.” 

A new Walton Family Foundation report finds that “Gen-Z craves work-life balance and mental health support. They dread getting stuck in a dull job. And they fault today’s decision-makers for downplaying the issues that move them, like school shootings and racism.” Tenure continues to decline. It’s easy to move to the next gig when your only relationships with an organization are via Zoom….

Businesses cannot provide societal leadership and protect democratic values and recruit and retain top talent — and continue to do business in those states that are rolling back rights. Consumers and employees will insist that organizations actively, transparently and significantly reduce activity in states which restrict long-held individual rights.   

Right-wing state legislatures and governors are forcing corporate choice, too. Florida’s attack on Mickey is well-documented and, as Dealbook pointed out, “At a time when corporate America is under increasing pressure to take a stand on political and social issues, some of the nation’s biggest banks continue to do business with gunmakers in Texas. In part that’s because a new law there requires companies to say they don’t ‘discriminate’ against the gun industry — or risk losing lucrative business with the state.”

And it’s not just for-profit businesses; organizations of all sorts must choose. The University of Texas-Austin recently published a 10-year strategic plan that says UT will become the “highest impact public research university” in the country. 

That’s impossible  to achieve — if not illegal to aspire to — in a Texas that, shielded by this Supreme Court, will become the most rights-restricting state in the country. Prospective faculty and students will avoid anti-rights states. Health care professionals, too. The creative class is on the move to pro-rights states.

What’s bad for UT is a great opportunity for the University of Colorado system, as Colorado looks steady as a rights-protecting state. Half of all states are rapidly dismantling rights and need to immediately become corporate “no-fly” zones. Others are teetering — Virginia’s new GOP governor just announced dramatic abortion restriction legislation. This is an economic development boon to fundamental-rights states. Amazon may need to rethink its HQ2 location decision.

There are steps organizations can take immediately:

1.   Fund abortion health care for all pregnant employees who need it, including fully paid travel across state lines if required 

2.  Clearly and publicly state your commitment to defending fundamental rights in America, and to those states that do so

3.   Defund activities in anti-rights states. Texas should immediately become a Zoom-access-only state.  A “blue enclave in a red state” is not sufficient location justification any longer (here’s looking at you in Austin, Tesla)

4.   Stop donating to anti-rights politicians

5.    Withdraw professional society and trade show support for your industry or profession from anti-rights states 

Two years ago, in the wake of the murder of George Floyd,  corporate leaders acted assiduously to  invest in community diversity, equity and inclusion and center those values in their organizations. Those investments in defense of democracy have been critical to maintaining trust momentum, as confidence in other institutions collapses. Leading organizations are doubling-down, with new, substantial and long-term inclusive growth commitments.

Today, organizations need to commit just as completely to renewing and restoring all fundamental  rights, for all Americans. They need to choose where they will do business and exit those states that are eliminating human rights. Organizations that choose poorly will lose talent (“at some point in the pandemic, women crossed the 50% threshold for the work force”), and face boisterous consumer boycotts. 

Six individuals, appointed and protected by minority rule, have imposed a “rights-tax” on American business and created the greatest division in America since the 1850s. Organizations have a responsibility — to their shareholders, employees, consumers and country — to choose sides now. 

JB Holston is an adviser on strategy and inclusive growth to corporations and educational institutions around the world. He is the former Dean of Engineering and Computer Science at the University of Denver. Holston founded the Blackstone Entrepreneurs Network,  the Colorado Media Project and other organizations in Colorado. 

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