Women's rights

  • March 27, 2015
    Guest Post

    by Emily J.Martin, National Women’s Law Center

    On Wednesday, the Supreme Court delivered an important victory for pregnant workers, when in a 6-3 ruling it revived Peggy Young’s pregnancy discrimination case against UPS and sent it back to the lower courts for further proceedings.  In so ruling, the Supreme Court declined UPS’s invitation to read a key piece of the Pregnancy Discrimination Act completely out of the statute books.  This decision should put employers on notice that when they exclude pregnant workers with medical needs from accommodations that they make for workers with disabilities or injuries, they do so at their legal peril.  Nevertheless, the Court’s decision also requires a somewhat unpredictable and fact-intensive analysis of these sorts of pregnancy discrimination claims.  As a result, individual pregnant women may still face real uncertainty as to their workplace rights, and individual employers may choose to take their chances in litigation rather than promptly providing accommodations to women who need them.  Congress should act now to affirm and strengthen this decision, to ensure that no pregnant woman is forced to choose between her job and the health of her pregnancy.

    Peggy Young’s case arose more than seven years ago, when she became pregnant while working as a UPS driver.  Her doctor recommended that she avoid lifting more than 20 pounds during her pregnancy.  When UPS learned of this restriction, it refused to let her continue to do her job, even though in fact she only rarely did any heavy lifting.  UPS also refused to give her a light duty assignment, even though it provided such accommodations to drivers with on-the-job injuries, drivers with disabilities as defined in the Americans with Disabilities Act, and drivers who had lost their commercial driver’s licenses for health reasons or other reasons—including DUI convictions.  As a result, Peggy Young was forced onto unpaid leave for the duration of her pregnancy, and lost her UPS-provided health insurance.  She sued, arguing that UPS had violated the Pregnancy Discrimination Act (PDA) when it refused to provide her the same sorts of accommodations it provided to others.  But despite the clear language of the PDA requiring employers to treat pregnant workers the same as those “similar in ability or inability to work,” she lost in the lower courts, which held that UPS’s accommodation rules were “pregnancy blind” and thus did not violate the law.

  • February 9, 2015
    Guest Post

    by Chris Edelson, Assistant Professor of Government, American University School of Public Affairs. Edelson is also author of Emergency Presidential Power: From the Drafting of the Constitution to the War on Terror from the University of Wisconsin Press.

    The misstep Republicans took last month on legislation seeking to prohibit abortions after 20 weeks of pregnancy has exposed larger problems related to the party’s position on abortion.  The bill foundered when some House Republicans raised concerns about a provision that would create a “rape exception” to permit abortions after 20 weeks of pregnancy, but only for victims of rape who report the crime.  Republican House member Rep. Carlos Curbelo said he is “pro-life but . . . had concerns about the bill.”  Rep. Curbelo added that he believed the rape reporting requirement caused “a level of discomfort, especially with the females in our conference.”  Republican leaders in the House agreed with Curbelo and canceled a vote on the legislation, apparently based at least in part on concerns that Republican women in the House would vote as a bloc against the bill because of the wording of the rape reporting provision.

    This unexpected development highlights problems in terms of both logic and politics for Republicans when it comes to abortion and, more broadly, when it comes to women.  The Republican Party has taken a position that strongly suggests abortion is never justified, using language reminiscent of anti-abortion arguments that flatly describe abortion as murder.  The 2012 Republican Party platform declared that “the unborn child has a fundamental individual right to life which cannot be infringed.” That language does not seem to leave room for any exceptions – whether they might be for the health of the pregnant woman or for rape.  Logically, it makes sense for the party to take this stance.  If Republicans believe abortion involves the taking of an innocent life – and elected Republicans frequently make clear that they believe precisely this – then it would not make sense for them to support abortion under any circumstances (other than if the pregnant woman’s life is at risk).

    The problem is that polling shows most Americans reject this position and believe women who are pregnant as the result of rape should be able to get an abortion.  Relatedly, in 2012 when Republican senatorial candidates Todd Akin and Richard Mourdock tried to explain why they believed abortion was only permissible in cases of “legitimate rape” (Akin) or that perhaps it is never permissible because pregnancy resulting from rape is “something God intended” (Mourdock), they ended up costing their party otherwise very winnable Senate seats.

    Republicans, of course, remember 2012 very well and have no interest in reminding the rest of the country of the cringe-inducing debate over how best to define rape.  Sen. Lindsey Graham recently suggested that the party needs to “find a way out of this definitional problem with rape” (although, as Joan Walsh observes, Sen. Graham risks stepping in the same trap as Todd Akin simply by alluding to a “definitional” question regarding rape.)  The revival of the rape definition discussion (most recently prompting philosophical musings by a Utah lawmaker about the ability of unconscious wives to have consensual sex) raises a larger problem for Republicans: It seems they just don’t trust women

  • January 30, 2015
    Guest Post

    by Kelli Garcia, Senior Counsel, National Women's Law Center

    Between 2011 and 2013, politicians in 30 states enacted 205 abortion restrictions, ranging from outright and unconstitutional abortion bans to laws intended to make it impossible for providers to offer abortion. Last year alone, fifteen states adopted 26 new restrictions that limit or impede access to abortion, making it harder and sometimes impossible for women to exercise their constitutionally protected right to abortion. This wave of anti-abortion activity has dramatically changed the country’s landscape for women seeking an abortion. According to the Guttmacher Institute, in 2013, more than half the states had at least four abortion restrictions in effect

    These multiple restrictions compound and, for many women, make it impossible to obtain an abortion. In Texas, for example, a woman seeking a medication abortion has to make four separate trips to the provider because of the restrictive laws that exist in that state. She is forced to undergo and view an ultrasound, listen to a description of the fetus' development, wait 24 hours, and then has to make two trips for medication abortion because Texas forces providers to use an outdated protocol rather than following current evidence-based medical practice. And this is if she can actually reach a provider - one out of six women in Texas will have to travel 150 miles or more to reach an abortion provider.

    These laws impose unnecessary monetary costs. These costs are particularly devastating to low-income and poor women who already face significant barriers accessing care. The cost of the abortion itself can be prohibitive, especially when politicians force women to pay out of pocket by prohibiting insurance coverage of abortion. Then, women must arrange for and receive time off work, most likely without pay. They might have to pay for childcare, find a place to stay or make multiple roundtrips to distant clinics, and/or find reliable transportation.  As one provider aptly noted, “[T]he vast majority of women can’t add those travel costs to the cost of an abortion or they can’t take off work.” These restrictions chip away at women’s right to abortion by creating so many barriers that abortion becomes unobtainable.

  • January 28, 2015
    BookTalk
    Cases on Reproductive Rights and Justice
    By: 
    Melissa Murray and Kristin Luker

    by Melissa Murray, Professor of Law and Faculty Director of the Berkeley Center on Reproductive Rights and Justice (CRRJ), University of California, Berkeley

    I must admit that for much of my academic career, I never thought of myself as someone who “did” reproductive rights.  When asked at dinner parties, I volunteered that I taught criminal law and family law.  When pressed ― “what on earth do those subjects have to do with each other?” ― I would explain that I was interested in the regulation of sex, sexuality and family formation.  Criminal law and family law, I would explain, were principal sites in which this sort of regulation took place.

    It was not until my colleague, Kristin Luker, a well-known sociologist and scholar of the abortion rights movement, nudged me to view my work more expansively that I began to see it fitting comfortably within the rubric of reproductive rights and justice.  As she reminded me, limitations on access to contraception and abortion are, by their very nature, efforts to regulate sex and sexuality by curtailing women’s efforts to control reproduction.  The legal regulation of reproduction is merely part of a broader story of efforts to discipline and regulate sex.

    My interest in reproductive rights and justice piqued, I joined Berkeley Law’s newly-formed Center on Reproductive Rights and Justice (CRRJ) as an affiliated faculty member in 2012 and assumed the role of Faculty Director in 2015.  Before its official founding, CRRJ hosted a meeting with staff from Law Students for Reproductive Justice (LSRJ) where we discussed the state of the field, including the availability of law school courses on reproductive rights and justice.  As I learned, although there was huge demand from students for such classes, many interested professors were reluctant to teach reproductive rights and justice courses because there was no casebook.  Because of the lack of a casebook, those willing to teach the subject were forced to compile their own materials ― a burdensome task, even for the most enthusiastic teacher.

  • December 15, 2014

    by Paul Guequierre

    The Supreme Court today declined to hear a case out of Arizona seeking to end the blocking of a state law limiting the availability of medicinal, nonsurgical abortions.  Opponents of the law, which had been blocked by a lower court, say it would all but put an end to medication abortions in the state.  This is not the first time this year the justices sided with abortion rights advocates. In October the Supreme Court allowed more than a dozen abortion clinics in Texas to remain open, blocking a state law that would have shut them down.

    In Arizona, the 2012 law requires abortion providers to comply with a 2000 protocol from the Food and Drug Administration for mifepristone, an abortion-inducing drug that is sometimes called RU-486, reports The New York Times.  The Legislature said the law was meant to “protect women from the dangerous and potentially deadly off-label use of abortion-inducing drugs.” Since 2000, doctors have found the drug, in proper doses, is safe and effective, undermining the anti-choice intent behind the state law.