Thursday, August 13, 2015

SG Brief Opposing Cert in Contraception Cases

Tuesday, August 11, 2015

Books: The Backstory of the Founding of Planned Parenthood

Given today's headlines about defunding Planned Parenthood, I am appreciating reading the following biography of PP's founder, Margaret Sanger which I've had on my shelf for awhile.  Jean Baker, Margaret Sanger: A Life of Passion.  The book does a good job of providing historical and social context, legal nuance, as well as readable biography.

August 11, 2015 in Books, Reproductive Rights | Permalink | Comments (0)

Explaining the Law of Pharmacists' Refusals to Dispense Contraception

The National Women's Law Center explains the existing law of pharmacists' "right" to refuse to dispense contraception. Pharmacy Refusals 101

Refusal to Dispense Contraception are Increasing

  • Reports of pharmacies refusing to fill prescriptions for birth control—or provide EC—have surfaced in at least twenty-five states across the nation, including: AZ, CA, DC, GA, IL, LA, MA, MI, MN, MO, MT, NH, NJ, NY, NC, OH, OK, OR, RI, TN, TX, VA, WA, WV, WI.
  • These refusals to dispense prescription contraceptives or provide EC are based on personal beliefs, not on legitimate medical or professional concerns.  The same pharmacies that refuse to dispense contraceptives because of personal beliefs often refuse to transfer a woman’s prescription or refer her to another pharmacy. These refusals can have devastating consequences for women’s health.
  • Despite the fact one type of EC is available without a prescription, refusals based on personal beliefs are still a problem. Some stores prefer to keep non-prescription EC behind the counter or in locked cases, so individuals seeking it must interact with pharmacists or other pharmacy staff who may have personal beliefs against providing the drug.

The Legal Landscape: What Governs the Practice of Pharmacy?

  • The laws governing pharmacies vary from state to state. Pharmacies must abide by state laws and regulations, which are written by the state legislature and the state Pharmacy Board.
  • The laws and regulations in most states do not specifically speak to the issue of pharmacy refusals based on personal beliefs.  States that provide general guidance about when pharmacies or pharmacists may refuse to dispense tend to limit the reasons for such a refusal to professional or medical considerations—such as potentially harmful contraindication, interactions with other drugs, improper dosage, and suspected drug abuse or misuse—as opposed to personal judgments.
  • Many pharmacist associations that have considered this issue, including the American Pharmacists Association, have issued policies requiring that patient access to legally prescribed medications is not compromised—for example by either filling valid prescriptions or transferring them to another pharmacist who can.  Although such policies are not legally binding, they encourage pharmacies to meet consumers’ needs.

August 11, 2015 in Healthcare, Reproductive Rights | Permalink | Comments (0)

Thursday, July 16, 2015

New Law Allows Pharmacists to Prescribe Birth Control

Ms., Oregon Pharmacists Can Now Prescribe Birth Control

Women in Oregon will soon be able to receive birth control prescriptions from pharmacists, thanks to a new law signed by Gov. Kate Brown this week. Under the new rule, birth control can be obtained without the added burden of scheduling a doctor’s visit. The bill passed the state’s house in a 50-10 bipartisan vote.

 

To get birth control from a pharmacist, women over 18 will have to fill out a simple health questionnaire so that pharmacists can recommend the best contraceptive method for them. Those under 18 will need proof of a previous birth control prescription, but aren’t required to get a new one. The contraception will still be covered by the patient’s insurance.

 

State Rep. Knute Buehler (R) celebrated the bill in a press release, saying that his background as a medical professional informed his beliefs on access to contraception.

July 16, 2015 in Healthcare, Legislation, Reproductive Rights | Permalink | Comments (0)

Tuesday, June 23, 2015

5th Circuit Rejects Challenge to Healthcare Contraceptive Mandate

Slate, Federal Court Vehemently Rejects Latest Challenge to the Obama Healthcare Contraceptive Mandate

On Monday, the Fifth Circuit—one of the most conservative appeals courts in the country—rejected a challenge to the Affordable Care Act's contraceptive mandate in an opinion written by Judge Jerry E. Smith—one of the most conservative federal judges on the bench. The challenge, brought by nonprofit religious groups, claimed that the mandate violated the Religious Freedom Restoration Act (RFRA) by forcing these groups to sign a form that would eventually allow their employees to access contraception. In a concise, emphatic opinion, the court ruled that the mandate complies with RFRA. ***

 

The religious groups currently suing the government claim that the act of submitting this form constitutes a substantial burden on their religious exericse, in violation of RFRA. Signing the form, they argue, will set into motion a chain of events that ultimately allows their employees to gain access to contraception. The Third, Sixth, Seventh, and D.C. Circuits have already rejected this argument; the Fifth Circuit now joins their ranks. At the heart of the court's opinion is this remarkable passage: 

 

Although the plaintiffs have identified several acts that offend their religious beliefs, the acts they are required to perform do not include providing or facilitating access to contraceptives. Instead, the acts that violate their faith are those of third parties. Because RFRA confers no right to challenge the independent conduct of third parties, we join our sister circuits in concluding that the plaintiffs have not shown a substantial burden on their religious exercise.

June 23, 2015 in Healthcare, Reproductive Rights | Permalink | Comments (0)

Saturday, June 6, 2015

Senators Introduce Pregnant Workers Fairness Act

Wash Post, How Feminists Can Win--by Treating Pregnancy like a Temporary Disability

This week a bipartisan group of four senators introduced a bill, dubbed the Pregnant Workers Fairness Act. It borrows language from the Americans With Disabilities Act and seeks to strengthen and clarify the “reasonable accommodations” that employers must make for pregnant employees.

 

The bill in and of itself it significant. But it's also significant in another sense -- in that it marks a clear and public turn away from decades of feminist thinking about the absolute interchangeability of male and female workers.

 

Advocates say the bill is built around a series of modern and pragmatic ideas that will directly aid the estimated 250,000 women each year who ask their employers for reasonable pregnancy-related work accommodations connected to their pregnancies -- we’re talking bathroom breaks, time for doctor’s appointments, restrictions on lifting and/or a nearby water bottle to remain hydrated – and see those requests denied. (That quarter-million women each year figure, by the way, comes from a 2014 survey conducted by the National Partnership for Women and Families.) What’s worse, at least some of these women instead wind up losing their jobs and the health insurance benefits that come with them.

June 6, 2015 in Equal Employment, Reproductive Rights | Permalink | Comments (0)

The New Issue of the Hastings Women's Law Journal

Saturday, May 30, 2015

The Pregnant Workers Fairness Act

The Pregnant Workers Fairness Act: Making Room for Pregnancy on the Job

The Pregnant Workers Fairness Act (PWFA) would let pregnant workers continue to do their jobs and support their families by requiring employers to make the same sorts of accommodations for pregnancy, childbirth, and related medical conditions that they do for disabilities. 

 

 

May 30, 2015 in Reproductive Rights, Workplace | Permalink | Comments (0)

Tuesday, May 26, 2015

Fifty Years of Pregnancy Discrimination Litigation under Title VII

Deborah Brake, On NOT "Having it Both Ways" and Still Losing: Reflections on Fifty Years of Pregnancy Litigation Under Title VII, 95 Boston U L. Rev. 995 (2015)

From the abstract:

This article . . . reflects on the past fifty years of conflict and struggle over how to treat pregnancy discrimination under Title VII. Pregnancy has played a pivotal role in debates among feminist legal scholars and women’s rights advocates about the limitations of both the equal treatment and special treatment anti-discrimination frameworks. The article’s title references the much-discussed Wendy W. Williams cautionary note that if we cannot have it “both ways” we need to decide which way we want to have it - a warning Williams followed with an argument for the equal treatment approach. The Pregnancy Discrimination Act (PDA), which amended Title VII in 1978, largely tracks the equal treatment model, setting a floor tying the treatment of pregnant women to that of other workers with similar health-based work restrictions. The model’s greatest promise was that it would avoid the backlash that would otherwise ensue if Title VII required employers to treat pregnancy more favorably than they treated other medical conditions. Equal treatment proponents framed their preferred approach as taking the long view, ensuring that as the boats of other workers rose, so too would those of pregnant employees. In the intervening years, this cautious optimism has not panned out. This article explores what lies beneath judicial resistance to pregnancy discrimination claims, and considers the future of the PDA after the Supreme Court’s decision (which was issued shortly before this article went to press) in Young v. UPS. It wraps up with a look at the recent pregnancy discrimination scholarship, contending that the rift posited between pro-maternity and anti-stereotyping discourses might be breached by greater attention to fostering egalitarian masculinities in relation to caretaking.

May 26, 2015 in Equal Employment, Family, Reproductive Rights | Permalink | Comments (0)

Thursday, May 21, 2015

The 50th Anniversary of Griswold and Marital (not Women's) Privacy

Jill Lepore, To Have and to Hold, New Yorker

This spring marks the fiftieth anniversary of the case that went forward instead: Griswold v. Connecticut. (“We became the footnote to the footnote,” Trubek told me.) In Griswold, decided in June, 1965, the Supreme Court ruled 7–2 that Connecticut’s ban on contraception was unconstitutional, not on the ground of a woman’s right to determine the timing and the number of her pregnancies but on the ground of a married couple’s right to privacy. “We deal with a right of privacy older than the Bill of Rights,” Justice William O. Douglas wrote in the majority opinion. “Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred.”

 

May 21, 2015 in Family, Reproductive Rights | Permalink | Comments (0)

Tuesday, April 21, 2015

Extending Pregnancy Discrimination Law to the Fourth Trimester

Ann Tweedy (Hamline), Moving Beyond the Pregnant/Non-Pregnant Dichotomy in Pregnancy Discrimination Law Based on the Lived Experiences of New Mothers, Jotwell 

(Reviewing Saru M. Matambanadzo (Tulane), The Fourth Trimester, 48 U. Mich. J.L. Reform, 117 (2014)).

In The Fourth Trimester, Saru Matambanadzo braids personal narratives of her own pregnancy and birthing experience with legal analysis and with concepts and research from nursing and midwifery to craft a rich and courageous critique of current employment law’s application to pregnant women and new mothers. Matambanadzo’s thesis is that the law erroneously treats pregnancy as a discrete nine-month timeframe when in fact the physical and emotional effects of pregnancy linger, extending “into the first three months after delivery, and sometimes beyond.” (P. 124). She also addresses the shortcomings of laws that protect against pregnancy discrimination more generally. The Fourth Trimester concretely illuminates the ways in which the limitations of the current framework of federal law disadvantage workers who become pregnant and give birth by, for example, failing to adequately support breastfeeding and to provide the time needed after birth for the mother-infant dyad to become less interdependent.

April 21, 2015 in Reproductive Rights | Permalink | Comments (0)

Tuesday, March 31, 2015

Amicus Brief

Prof. Nancy Dowd at the U of Florida had asked me to post this:

The Supreme Court Clinic of the University of Texas School of Law is planning to file an amicus brief in support of a cert petition in a family law/gender discrimination case and is seeking legal scholars to sign onto the brief as amici. The cert petition was filed on behalf of an unwed father who was prevented from objecting to the adoption of his newborn son. The father and the mother of the child were not married. Before the child was born the father filed a petition in state court seeking to establish paternity and also to establish custody, parent time, and child support. He also registered with Utah’s putative father registry with a sworn and notarized form, agreed to a court order of child support, and offered to assist the mother with her pregnancy-related expenses. Due to his lawyer’s oversight, unfortunately, he failed to timely file an affidavit attesting to his ability to provide for the child and setting forth his plans for care of the child, as required by Utah statute. Adoption proceedings were initiated when his son was three days old. When the adoptive parents notified the father of their intent to adopt his son without his consent, the father moved to intervene in the adoption proceeding. The adoptive couple opposed the father’s motion to intervene, based on the father’s failure to file the affidavit attesting to his ability to provide for the child and setting forth a plan for the child’s care. The court held that the father’s failure to file that affidavit left him with no rights at all regarding his three-day old son, and that this default could not be cured by a late filing. Accordingly, the father’s newborn child was placed for adoption over his objections, solely because he failed to file an affidavit, as required by state law, attesting that he was able and willing to take custody of the child and setting forth his plans for care of the child. Utah law requires unwed fathers, but not unwed mothers, to file such an affidavit before they can assert any claim to parental rights. The father challenged the affidavit requirement in state court on federal and state constitutional grounds, claiming that requiring unwed fathers but not unwed mothers to file such an affidavit was a violation of the Equal Protection Clause. He also raised a substantive due process challenge to the affidavit requirement. The district court rejected his claims and the Supreme Court of Utah affirmed. On the equal protection claim, the Utah Supreme Court acknowledged that requiring an unwed father, but not an unwed mother, to file an affidavit about future support plans is a sex-based classification triggering intermediate scrutiny, but applied a lower level of scrutiny because it found that the affidavit requirement was not particularly burdensome. Under this lower standard, the court held that the different treatment was constitutional because the affidavit requirement was a way to make unwed fathers demonstrate their commitment to the child’s best interests, while unwed mothers demonstrated such a commitment simply by carrying the child to term. According to the Utah Supreme Court, the affidavit requirement put the parents on “equal footing” regarding a demonstrated commitment to the wellbeing of the child. Professor Eugene Volokh of UCLA has filed a cert petition on behalf of the father, arguing that once an unwed father has made himself known, sought to establish his rights to the child, filed a petition for custody and an agreement to court ordered child support, imposing the additional requirement of an affidavit setting forth a care plan on the father but not the mother is a violation of the Equal Protection Clause. The University of Texas School of Law’s Supreme Court Clinic plans to file an amicus brief in support of the petition, urging the Court to grant the case. We are seeking family law scholars and gender discrimination law scholars to sign on to the brief as amici, urging the Court to grant cert. Amicus briefs filed at the cert stage are a very important tool for convincing the Court that the issues raised in the case are important and that the case warrants the Court’s attention. Our current plan is to file a brief outlining the demographic trend toward more out-of-wedlock births and thus the importance of the issue of the constitutional standard for gender-based differences in the treatment of unwed fathers and unwed mothers. We will then explain that this case raises two important issues that the Court has left open in its prior equal protection decisions about fathers and mother and that it tried unsuccessfully to resolve in Flores-Villar v. US several years ago. In particular, the case raises the questions of (1) the constitutionality of gender-based distinctions between unmarried mothers and unmarried fathers that do not help clarify paternity and (2) what “substantial connection to the child” means in the context of a newborn baby. More concretely, this case presents the very important issue whether a state can impose on the unmarried father of a newborn baby a burden to prove his willingness and ability to provide for a child even though he has diligently asserted his paternity and sought custody of the child, when it imposes no equivalent burden on the unmarried mother of the child. Finally, we will argue that the gender-based differences in this statutory scheme lack a rational basis because they rely on outmoded and inaccurate stereotypes about mothers and fathers. At this stage, we are looking for signatories to help refine and elaborate on these arguments. The sooner we have involved signatories, the better we can represent their views and promote their interests. The amicus brief is due on April 13, 2015, and the Clinic needs to give notice of its intent to file by this Friday, April 3, 2015 – and needs signatories by then. Anyone interested in being part of this effort can get more information (including an outline of the proposed brief) by emailing Clinic Director Lynn Blais at lblais@law.utexas.edu, or calling her at 512-232-1334.

March 31, 2015 in Family, Manliness, Masculinities, Reproductive Rights | Permalink | Comments (0)

Monday, March 16, 2015

Ashe on Gender and Religion

Marie Ashe (Suffolk) has uploaded a new paper about the ministerial exception and its relationship to the area of gender and law.  The abstract: 

The US Supreme Court’s Hosanna-Tabor opinion, defining a Constitutionally-rooted “ministerial exemption” of churches from the obligations of anti-discrimination laws, utilized an “absolutist” approach that has been contrasted with the “balancing” approach to the same issue taken by the European Court of Human Rights. Focusing on Hosanna-Tabor, this essay provides analysis of the implications of the case by identifying its location in – and its contribution to – the program of “religious privilege” that has been advanced the Supreme Court during the past 25 years. The essay documents relevant Constitutional case law and statutes; outlines the evolution of the “ministerial exemption;” and, points to losses of individual equality that are being accomplished concurrently with great expansions of “religious liberty” and with abandonment of meaningful “separationism” in the US. Accepting the critique of “absolutism,” the essay suggests, further, that Hosanna-Tabor and other recent work of the Court lack – but that resources extractable from US law of the “religious pluralism” period can provide – conceptual resources useful for protection of individuals’ equality and for minimizing “divisiveness based on religion.”

 

 

March 16, 2015 in Religion, Reproductive Rights | Permalink | Comments (0)

Friday, March 6, 2015

The Latest Issue of the Harvard J of Law & Gender

Harvard Journal of Law and Gender

The latest volume focuses entirely on the Hobby Lobby case and its issues of reproductive freedom and religious freedom.  

March 6, 2015 in Religion, Reproductive Rights | Permalink | Comments (0)

Friday, February 27, 2015

Unlike America, in South Korea, Adultery Is No Longer Illegal

The South Korean Constitutional Court recently held that prohibitions against adultery were unconstitutional. From the NYT:

South Korea’s Constitutional Court on Thursday struck down a 62-year-old law that made adultery an offense punishable by up to two years in prison, citing the country’s changing sexual mores and a growing emphasis on individual rights.

By contrast, the U.S. Supreme Court has so far refused to make an analogous statement.  Check out the Mother Jones article (a bit outdated, though) . 

 

February 27, 2015 in Family, Reproductive Rights | Permalink | Comments (0)

Thursday, February 12, 2015

More on the Ames Case and How the Courts Ignored Blatant Sex Discrimination

Galen Sherwin, ACLU Women's Rights Project, Would You Like Some (More) Sexism With That?

There's been a great deal of interest in the case I blogged about last week, in which Angela Ames, a Nationwide Insurance worker alleged that she was denied a place to pump breast milk when she returned to work from maternity leave, and then was forced to resign by her supervisor.

 

In addition to the righteous outrage over the facts of her case, there has also been quite a bit of confusion and disbelief that this could have actually happened as well as some misleading headlines. We thought it would be useful to walk through in more detail exactly what the courts did –and did not do – in her case, and how they managed to ignore blatant sex discrimination.***

 

"Just Go Home And Be With Your Babies"

The district court's response to the "just go home and be with [her] babies" was similar. The court reasoned that this was not evidence of sex discrimination because it was "based on Ames's gender-neutral status as a new parent," further explaining that "[b]eing a parent is not gender-specific as this class also includes men and women who will never become pregnant."

 

It's true, men are parents too – and it's also true that men can lactate under certain circumstances. But it's nearly impossible to imagine someone actually saying this to a new father on his first day back at work.

 

In reality, both things happen overwhelmingly to women. Emma Cueto observes on Bustle, "Welcome to America! Where gender binaries are completely biologically determined and totally absolute when we're refusing to recognize trans people, but as soon as it's time to give women rights in the workplace we can't wait to talk about male lactation."

 

Waiting Three Days to Pump – Not Intolerable?

 

The part of the district court decision that the appeals court agreed with was that Angela had not done enough to protest her treatment before resigning. The district court found that although the conditions at work may have been "less than ideal and, arguably, unpleasant," they were not "intolerable"– and the appeals court agreed, finding that "Nationwide's several attempts to accommodate Ames show its intent to maintain an employment relationship with Ames, not force her to quit." As Tracy Thomas writes on the Gender and the Law blog, "Really? If you say so."

 

Let's remember that when Angela asked to use the lactation room, she was told she would have to wait three days for badge access. As any woman who has breastfed knows, you simply cannot wait three days to pump – waiting even three hours can lead to serious pain and risk of infection. 

 A few thoughts:

1. Sherwin says: "As Amanda Marcotte wrote on Slate, 'The fact that the original court latched onto [nursing humor] such a silly argument suggests an unwillingness to take Ames' case seriously from the get-go, which casts a pall over the entire ruling.'"  This is really the crux of the problem.  The courts still just don't get it. 

 

2.  The US Supreme Court in Cleveland Board of Education v. LaFleur, encountered in 1973 a similar remark from a supervisor for a woman to just "go home and have your babies."  There, the court found it to be sex discrimination, though in a roundabout procedural due process kind of way by imposing mandatory maternity leaves on teachers from the 4th month of pregnancy until one year after the birth of their child, with no right to reinstatement.  Had the Court ruled on equal protection grounds of sex discrimination, as argued by the plaintiff, perhaps we wouldn't still be hearing the same thing happening in workplaces 42 years later. 

February 12, 2015 in Equal Employment, Family, Reproductive Rights, Workplace | Permalink | Comments (0)

Saturday, February 7, 2015

Lactation is not Related to Pregnancy and Other Interesting Findings of the Courts who Denied a Nursing Mom was Constructively Discharged

Lots of questions about the Ames v. Nationwide Insurance case I previously posted about.SCOTUS Denies Cert Upholding Firing of Woman for Breastfeeding because Men can Lactate Too

 First, no clues as to what the Justices’ vote was here on the denial of cert.  We are not generally privy to this information, and no Justice here wrote a dissent from the denial.  My guess is that this is a messy case and that the most problematic reasoning was 1) in the trial court opinion rather than the Eighth Circuit opinion and 2) that it was viewed as an employment case about constructive discharge rather than the retro pregnancy discrimination that it is. 

 This is really a pretty outrageous case.  Factually, and Gender-wise if not legally.  Woman who is an insurance loss-mitigation specialist has baby #1 and takes 8 weeks maternity leave.  Then oops, pregnant with baby #2 three months later.  High risk pregnancy that requires bed rest, and the paper is born prematurely.  Nationwide messes up her maternity leave return date, and calls her while on leave and says you have to come back to work a few weeks earlier, and says taking unpaid FMLA leave would “raise red flags” and is not advised.  She returns on time, and on her first day back, she is denied access to the lactation room – which is an area requiring special security clearance and mandatory pre-approved paperwork with a three-day waiting period. (They lost me here).  Turns out the temporary substitute did none of the work while she was gone and she has two weeks to work overtime to complete the two months worth of work, and her supervisor, a woman, in response to her repeated requests for a nursing room as she is in pain, says “You know, I think it's best that you go home to be with your babies” and dictates her resignation letter to sign.   

 The main holding is she didn’t try hard enough to keep her job.  She was supposed to stick it out more, complain more, follow the channels of appeal.  Neither the trial court nor the Eighth Circuit is in the least bit sympathetic. 

 The Eighth Circuit opinion seems to just ignore the evidence. “ Nationwide's several attempts to accommodate Ames show its intent to maintain an employment relationship with Ames, not force her to quit.”  (Really? If you say so.)  And superficially concludes “That Nationwide's policies treated all nursing mothers and loss-mitigation specialists alike demonstrates that Nationwide did not intend to force Ames to resign when it sought to enforce its policies.”

 The trial court actually frames the problem as women’s problem in trying to have both a family and career. . “Returning to work promptly after childbirth, coupled with the desire to continue breastfeeding, exposes women to a unique and often challenging set of circumstances. To many, expressing breast milk in the workplace is incompatible with the desire to pursue a successful career. With respect to these challenges and the resulting social response, the Honorable Lewis A. Kaplan commented as follows:

                ‘The transformation in the role of women in our culture and workplace in recent decades and the civil rights movement perhaps will be viewed as the defining social changes in American society in this century. Both have resulted in important federal, state and local legislation protecting those previously excluded from important roles from discrimination in pursuit of the goal of equality. Nevertheless, few would deny that the problems facing women who wish to bear children while pursuing challenging careers at the same time remain substantial. Martinez v. MSNBC, 49 F. Supp. 2d 305, 306 (S.D.N.Y. 1999).

 And here is the most ridiculous conclusion.  Lactation is not related to pregnancy.

 Ames has not presented sufficient evidence that lactation is a medical condition related to pregnancy. Indeed, as the Nationwide Defendants point out, “lactation can be induced by stimulating the body to produce milk even though the person has not experienced a recent birth or pregnancy.” Defs.’ Reply Br. in Supp. of MSJ (“Nationwide’s Reply Br.”) at 12 n.9. Additionally, the Court takes judicial notice of the fact that adoptive mothers can also breast-feed their adoptive babies. See Defs.’ App. at 323–25 (stating that adoptive mothers can breast-feed their adoptive babies and describing what adoptive mothers should do to stimulate milk production). Furthermore, it is a scientific fact that even men have milk ducts and the hormones responsible for milk production. See Nikhil Swaminathan, Strange but True: Males Can Lactate, SCI. AM., Sept. 6, 2007, available at http://www.scientificamerican.com/article.cfm?id=strange-but-true-males-can-lactate&sc=rss. Accordingly, lactation is not a physiological condition experienced exclusively by women who have recently given birth.

  Therefore, nursing issues not pregnancy discrimination. The end.  

And that is a pretty big issue, which is why the ACLU was likely involved.  In the old pre-PDA Supreme Court cases like Gilbert, the Court said that pregnancy was not sex discrimination.  Now the courts are saying nursing is not pregnancy.  

The Eighth Circuit Opinion is here. [WESTLAW]

The trial court opinion is here.

 

 

February 7, 2015 in Equal Employment, Reproductive Rights, Workplace | Permalink | Comments (0)

Thursday, February 5, 2015

SCOTUS Denies Cert Upholding Firing of Woman for Breastfeeding because Men Can Lactate Too

Slate, Breastfeeding Mom Loses Because Men Can Lactate Too

In a recent piece for the New Republic, Rebecca Traister argues that “pregnancy and immediate postpartum life itself plays a serious role in slowing professional momentum for women for whom the simple—and celebrated—act of having a baby turns out to be a stunningly precarious economic and professional choice.” Just last week, the Supreme Court took a major step in keeping it that way, upholding a federal appeals court ruling against a breast-feeding mother, Angela Ames, who felt bullied out of her job with Nationwide Insurance. Part of the court's reasoning was,according to Galen Sherwin of the American Civil Liberties Union, “that even if Angela had been fired because she was breast-feeding, that was not sex discrimination, in part because men can lactate under certain circumstances.”

 

Ames' story reads as every woman's worst nightmare of what coming back from maternity leave could be like. 

Woman Out of Appeals After Trial Court Says Her Firing for Breastfeeding Not Sexist Since Men Can Lactate

Last month, the U.S. Supreme Court denied Ames’ petition for a review of her case’s dismissal. The district court’s decision — which the Eight Circuit Court did not overturn — said that Nationwide’s treatment of Ames could not have been sexist because under certain circumstances, some men can lactate, too.

 

“The court’s reasoning in this case echoes old Supreme Court pronouncements that discriminating against pregnant women at work isn’t sex discrimination because both men and women can be non-pregnant,” Sherwin wrote. “Congress long ago rejected this ridiculous reasoning when it passed the Pregnancy Discrimination Act. It’s disheartening to see it resurface again.”

 

The court also found that the dismissive statement that Ames should “go home and be with (her) babies” was in fact gender neutral and not directed at Ames because she was a new mother.

 

“As the ACLU and 11 other organizations argued in a brief supporting Angela’s appeal, that comment reflects exactly the type of sex stereotype — that women will be less committed to their work after having children, or that they belong at home taking care of the children — that the federal law prohibiting sex discrimination in employment was aimed at eradicating,” Sherwin wrote.

February 5, 2015 in Equal Employment, Reproductive Rights | Permalink | Comments (1)

Wednesday, February 4, 2015

Abortion in El Salvador

From the Guardian UK:

El Salvador is one of only six countries that have complete bans on abortion. The others are Nicaragua, Chile, the Dominican Republic, Malta and South Sudan. Many other countries only allow abortion if a woman’s life is in danger.

And: 

In 2013, El Salvador’s draconian abortion laws became the focus of international attention when a pregnant 22-year-old was denied an abortion even though her life was at risk.

Last year, the country was elected to the UN human rights council, which is “responsible for strengthening the promotion and protection of human rights around the globe”, as well as addressing rights violations.

 

February 4, 2015 in Reproductive Rights | Permalink | Comments (0)

Wednesday, January 21, 2015

China's One-Child Policy creating serious problems

From Yahoo News:  

Chinese health authorities on Wednesday described the gender imbalance among newborns as "the most serious and prolonged" in the world, a direct ramification of the country's strict one-child policy.

A Chinese government website

acknowledged that women were transferring blood samples overseas to determine the genders of their babies as part of an "underground chain for profit".

"This has further exacerbated the gender imbalance in our country's birth structure," the agency said.

Researchers have warned that large sex-ratio imbalances could lead to instability as more men remain unmarried, raising the risks of anti-social and violent behavior.

January 21, 2015 in International, Reproductive Rights | Permalink | Comments (0)