Mary Ziegler: Walgreens gets caught in the corporate culture wars

Companies that once championed social justice and equity are beating a hasty retreat.

(Maria Chimishkyan for The New York Times)

The corporate culture wars have reached a turning point: A number of companies that once championed social justice and equity seem to be beating a hasty retreat.

Walgreens is trapped in a political firestorm. The pharmacy chain, which had sought certification so its stores could fill prescriptions for the abortion medication mifepristone, announced last week that it will not dispense the pill in the 21 states where Republican attorneys general have threatened legal action. Walgreens, which said it came to this conclusion before the threats began, won’t dispense the drug in several G.O.P.-controlled states where abortion remains legal. There was a swift backlash, with Gov. Gavin Newsom announcing that California would not renew a multimillion-dollar contract with Walgreens and others calling for a nationwide boycott. The hashtag #boycottwalgreens has taken off on Twitter.

With Congress frozen, progressives and conservatives alike have increasingly turned corporations into a new battlefield. The result is exactly what many businesses have long sought to avoid: getting sucked into the culture wars.

So far, the winners in the fight over Walgreens are abortion opponents and their Republican allies, who overcame public opinion with an activist Supreme Court and have found a new way to make the procedure harder to obtain across the country. Walgreens seems to have stumbled into the worst of all possible worlds, but the real losers are the people denied one of the few remaining ways to get an abortion — and the voters in states who voted explicitly to preserve abortion rights within their borders, only to see their preferences ignored.

For decades, corporations successfully steered clear of political issues. That began to change as growing partisanship made it much harder to avoid staking out positions on issues such as racial justice and climate change. Surveys also showed that the rising generation of young workers and consumers was not only progressive but also more willing to work for and to buy from companies willing to speak out on politically charged issues. In 2015, 379 companies and groups from various industries signed onto a friend-of-the-court brief submitted to the Supreme Court in support of same-sex marriage. After the murder of George Floyd, according to a survey by The Washington Post, companies like Apple and Pfizer pledged to fight racism, and the nation’s 50 largest public companies and their foundations committed nearly $50 billion to addressing racial inequality.

Little did they know that companies were turning themselves into perfect targets for post-Trump Republicans. Gov. Ron DeSantis of Florida (a likely presidential candidate) became one of the most visible champions of the strategy after starting a highly public tussle against Disney in 2022 after its chief executive at the time, Bob Chapek, under pressure from his employees, denounced legislation meant to prohibit classroom discussion of sexual orientation and gender identity through the third grade. Brooks Barnes reported in The Times that after months of maneuvering, Mr. DeSantis gained control of the board that oversees development at Walt Disney World, restricting Disney’s autonomy over its theme-park complex. The message was clear: Addressing issues of social justice can come at a cost.

At the time, progressives believed that Disney was in a uniquely vulnerable position because a major source of the company’s revenue was in Mr. DeSantis’s state. But Republican intimidation tactics also worked when they didn’t have a home-field advantage. Last May, Consumers’ Research, a conservative group that began a campaign against what it called “woke capitalism,” attacked the insurer State Farm for partnering with the GenderCool Project, which supports transgender and nonbinary youth. The program helped provide books on L.G.B.T.Q. themes to schools and libraries. State Farm severed its ties with GenderCool hours after the attacks appeared in a right-wing outlet.

That month a draft opinion of Dobbs v. Jackson Women’s Health Organization, the decision that would reverse Roe v. Wade, was leaked to the press. Dozens of companies announced that they would reimburse employees who lived in states where abortion was restricted for travel to another state for the procedure. But the response was primarily from those you would expect: Tech, financial and professional services companies that rely heavily on educated, younger workers made up nearly two-thirds of those that quickly staked out a position after the decision was formally announced in June, a Fortune analysis showed. (Businesses headquartered in blue states were also faster to take a stand.)

Cue the Republican attacks. In 2022 leaders of the Texas Freedom Caucus, a group of conservative state lawmakers, accused a law firm that has promised its employees to reimburse them for travel for out-of-state abortion care of aiding and abetting a felony; a bill introduced by Senator Marco Rubio, Republican of Florida, would deny tax breaks to companies that help their employees pay for interstate abortion. A state legislator in Texas has since put forward a bill that would require internet service providers to try to block sites providing information about how to get an abortion or an abortion-inducing drug.

Caught in the heaviest crossfire are companies like Walgreens that can distribute abortion medication. In February nearly two dozen Republican attorneys general, some representing states where abortion remains effectively legal, threatened Walgreens with legal action if it began distributing the drug.

The argument by the attorneys general relies on the federal Comstock Act passed in 1873, which barred the mailing of obscene literature, birth control and drugs or devices used for abortion. The attorneys general are embracing a literal interpretation, pointing to the part of the Comstock Act that says it bars the mailing of any drug that will “be used or applied for producing abortion.”

The Biden administration’s Office of Legal Counsel rejects this interpretation, noting that the Comstock Act doesn’t apply to mailing abortion drugs when the sender has no reason to believe they will be used unlawfully. But the attorneys general warned Walgreens that a future U.S. attorney general will most almost certainly agree with their reading of the act. And the attorneys general argue that federal judges would probably back up federal prosecutors, adopting an interpretation of the Comstock Act that would put corporations in jeopardy.

All these skirmishes are occurring at a time when Americans’ support of abortion rights has never been clearer: According to Gallup, the number of Americans who identify as “pro-choice” is at a near-record high, and the percentage of those who think abortion should be legal under all or most circumstances rose from 45 to 53 percent from 2021 to 2022. The 2022 midterm results validated the argument that abortion access really matters. The number of younger voters at the polls surged in the midterms, and they made a difference in key state and national races. After Dobbs, pollsters found that record numbers of Americans were dissatisfied with abortion bans, with 46 percent wanting less strict laws around the procedure.

Regardless of how Americans feel, Republican tactics seem to be working. As was the case in the 2022 elections, it will likely be up to younger Americans to decide whether that gamble backfires. Either way, the corporate culture wars are just beginning, and if Walgreens is any indication, Republicans might have the upper hand.

Mary Ziegler is a law professor at the University of California, Davis. Her latest book is “Roe: The History of a National Obsession.” This article originally appeared in The New York Times.