Gender and the Law Prof Blog

Editor: Tracy A. Thomas
University of Akron School of Law

Thursday, June 22, 2017

Can an Employer Provide Fathers with Less Paid Paternity Leave than Mothers

Jon Hecht, The Surprising Sexism of Maternity Leave

Many Americans still think of parental leave as a "woman's issue," but Derek Rotondo, a employee at JPMorgan Chase, is determined to change that. On Thursday, the American Civil Liberties Union filed a complaint with the Equal Employment Opportunity Commission on behalf of Rotondo, alleging that JPMorgan Chase is engaging in gender discrimination by providing 16 weeks of maternity leave but only two weeks of comparable paternity leave.

“JPMorgan’s parental leave policy is outdated and discriminates against both moms and dads by reinforcing the stereotype that raising children is women’s work, and that men’s work is to be the breadwinner,” Galen Sherwin, the ACLU’s Women’s Rights Project's senior staff attorney, said in a statement.

"I'm frankly surprised that a company as large as JPMorgan would have a policy like this in this day and age," Vicki Schultz, Ford Foundation Professor of Law and Social Science at Yale Law School, tells Bustle.

"Providing equal parental leave to men and women is an important step in trying to get at a lot of cultural stereotypes and starting to chip away at the assumption that women do and should bear the primary responsibility for caregiving," Maya Raghu, Director of Workplace Equality and Senior Counsel at the National Women’s Law Center, tells Bustle

The paternity fight may even be a sign of larger societal change. "Legal and cultural change often go hand in hand. One pushes the other," Raghu says.

The effect of more men involved as primary caregivers for raising children could have powerful effects not just for those men, but for the women who would no longer be expected to put their careers on hold to take care of children. Research has suggested time and again that the breaks in work from caregiving — usually experienced more by women than men — contribute to the gender wage gap. Some experts hope that equalizing how workplaces and culture treat men as caregivers could have impact on minimizing that gap.

"Feminist theorists believe that this is really kind of the crux," says Tracy Thomas, John F. Seiberling Chair of Constitutional Law at the University of Akron School of Law and Editor of the Gender and Law Professors Blog. "Right now, a lot of the formal inequalities between men and women since the 1970s have sort of been eliminated in the workplace — as far as different rules, different hours, different wages."

However, the reality is often more complicated than the workplace laws on the book. "A lot of the cases really pushing the theory of gender discrimination right now are at this question of family and parenting and maternity leave," says Thomas. "So if we were to extend it across the board, I think that could be potentially very big in changing [the situation]. Because that's where we've identified we're culturally stuck. We're still stuck on women taking care of kids."

However, as I blogged about last week in Are Men Entitled to Equal Paid Paternity Leave?, the current EEOC guidelines on pregnancy discrimination allow a different leave period for men and women by giving additional time for women based on physical recovery time.  It is only the time for caregiving and bonding that must be the same.  Thus, it is permissible as the law is currently interpreted to give 16 weeks of paid leave to women, and 6 weeks of paid leave to men.

June 22, 2017 in Equal Employment, Family, Reproductive Rights | Permalink | Comments (0)

Monday, March 27, 2017

Comparative Perspectives on the International Regulation of Abortion

Siobhan Mullally and Claire Murray, Regulating Abortion: Dissensus and the Politics of Rights, 25 Social & Legal Studies: An International Journal (2016)

This special issue brings together comparative perspectives on the regulation of abortion. It examines the sociopolitical contexts within which proposals to expand access to abortion for women are won and lost. Women’s claim to a right to safe and legal abortion services is relatively new in the language of human rights; yet, it is one that continues to ‘trickle up’ and to ‘download’ across diverse jurisdictions. As the essays in this volume acknowledge, however, the universalized power of law, and the turn to law to secure a vindication of rights, brings with it certain risks. These risks of ignoring context and the messy processes of implementation are highlighted in the essays collected together in this volume.

March 27, 2017 in Abortion, International, Reproductive Rights | Permalink | Comments (0)

Friday, March 24, 2017

Would Gorsuch Follow Supreme Court Precedent on Pregnancy Discrimination

Gillian Thomas, Would Gorsuch Follow Supreme Court Precedent Rejecting Discrimination?

A former law student’s allegations that U.S. Supreme Court nominee Judge Neil Gorsuch last year told a University of Colorado Law School class that women often “use” their employers for maternity coverage, only to quit after giving birth—and accordingly, that female applicants should be questioned about their pregnancy plans—are jaw-dropping, if true. As Emily Martin of the National Women’s Law Center wrote this week in U.S. News & World Report, such opinions contravene a body of sex-discrimination law going back nearly 50 years.

 

Judge Gorsuch was questioned briefly at a confirmation hearing Tuesday about the alleged statements, and not surprisingly, he denied making them. The statements have been corroborated by a second student in the class and contemporaneous documents produced by the original complaining student, but they also have been disputed by other students.

 

Members of the Senate Judiciary Committee should be alarmed by Gorsuch’s refusal to go beyond merely defending his classroom statements and give a full-throated repudiation of pregnancy discrimination, which remains one of the most pervasive barriers to working women nearly 40 years after enactment of the Pregnancy Discrimination Act.

 

There is an even more fundamental legal principle at stake, though, about which Gorsuch remained silent. Gorsuch allegedly told his students that employers not only can rely on stereotypes in making employment decisions—that is, by assuming that a woman will quit once she becomes a mother—but that they should (so that they can “protect themselves”). But the Supreme Court has found, time and again, that it is illegal to rely on a stereotype about a group in making a decision about an individual employee. Does Gorsuch agree? We still don’t know.

 

In the 1978 case City of Los Angeles v. Manhart, the Supreme Court found illegal an employer’s pension plan that required female workers to contribute more to the plan than their male colleagues because actuarial calculations showed that women generally lived longer than men. The plan violated Title VII of the Civil Rights Act of 1964—the federal law outlawing employment discrimination because of race, national origin, color, religion, and sex—because, the Court explained, the law “precludes treatment of individuals as simply components of a racial, religious, sexual, or national class. If height is required for a job, a tall woman may not be refused employment merely because, on the average, women are too short.” Admonished the Court: “Even a true generalization about the class is an insufficient reason for disqualifying an individual to whom the generalization does not apply.”

 

A decade later, the Court ruled that a Big Eight accounting firm’s rejection of a female candidate for partner because she was “macho” and needed “a course at charm school” had violated Title VII: “[W]e are beyond the day when an employer could evaluate employees by assuming or insisting that they matched the stereotype associated with their group.” Soon after, the Court invalidated a battery manufacturer’s policy that prohibited women of childbearing age from holding any job involving contact with lead, which could be toxic to fetuses. (Those risky jobs also, not surprisingly, paid more than others at the company.) That policy, the Court ruled, assumed that any fertile woman was a potential mother, regardless of whether she was sexually active, used birth control, or wanted children. Again, ascribing group characteristics to the detriment of an individual employee—even for allegedly benevolent reasons—was found to violate anti-discrimination principles.

 

In the five decades since Title VII was enacted, myriad other stereotypes have been recognized by courts as motivating illegal discrimination.

For elaboration on the point about Manhart and generalized stereotypes that are true, see my chapter on the case in US Feminist Judgments: Rewritten Opinions of the Supreme Court (Kathy Stanchi, Linda Berger, & Bridget Crawford, eds) (Cambridge Univ. Press 2016). 

March 24, 2017 in Constitutional, Judges, Pregnancy, Reproductive Rights, SCOTUS | Permalink | Comments (0)

New Books: Sex and the Constitution

Geoffrey Stone, Sex & the Constitution (2017)

From the publisher:

 

Beginning his volume in the ancient and medieval worlds, Geoffrey R. Stone demonstrates how the Founding Fathers, deeply influenced by their philosophical forebears, saw traditional Christianity as an impediment to the pursuit of happiness and to the quest for human progress. Acutely aware of the need to separate politics from the divisive forces of religion, the Founding Fathers crafted a constitution that expressed the fundamental values of the Enlightenment.

 

Although the Second Great Awakening later came to define America through the lens of evangelical Christianity, nineteenth-century Americans continued to view sex as a matter of private concern, so much so that sexual expression and information about contraception circulated freely, abortions before “quickening” remained legal, and prosecutions for sodomy were almost nonexistent.

 

The late nineteenth and early twentieth centuries reversed such tolerance, however, as charismatic spiritual leaders and barnstorming politicians rejected the values of our nation’s founders. Spurred on by Anthony Comstock, America’s most feared enforcer of morality, new laws were enacted banning pornography, contraception, and abortion, with Comstock proposing that the word “unclean” be branded on the foreheads of homosexuals. Women increasingly lost control of their bodies, and birth control advocates, like Margaret Sanger, were imprisoned for advocating their beliefs. In this new world, abortions were for the first time relegated to dank and dangerous back rooms.

 

The twentieth century gradually saw the emergence of bitter divisions over issues of sexual “morality” and sexual freedom. Fiercely determined organizations and individuals on both the right and the left wrestled in the domains of politics, religion, public opinion, and the courts to win over the soul of the nation. With its stirring portrayals of Supreme Court justices, Sex and the Constitution reads like a dramatic gazette of the critical cases they decided, ranging from Griswold v. Connecticut (contraception), to Roe v. Wade (abortion), to Obergefell v. Hodges (gay marriage), with Stone providing vivid historical context to the decisions that have come to define who we are as a nation.

Also of related interest might be Leigh Ann Wheeler, How Sex Became a Civil Liberty (Oxford 2012).

March 24, 2017 in Books, Constitutional, Reproductive Rights | Permalink | Comments (0)

Tuesday, January 31, 2017

CFP Student Scholarship in Reproductive Rights

CFP 2017 Sarah Weddington Writing Prize for New Student Scholarship in Reproductive Rights

If/When/How, in collaboration with the Center for Reproductive Rights and the Center on Reproductive Rights and Justice at Berkeley Law School, is currently accepting submissions for the twelfth annual Sarah Weddington Writing Prize for New Student Scholarship in Reproductive Rights.

 

This year’s suggested theme is “Balancing Burdens and Benefits after Whole Woman’s Health v. Hellerstedt.” However, submissions on other topics will also be accepted. For more information, please download the Call for Submissions. The deadline for submission is Monday, February 27, 2017.

 

Winning authors will receive cash prizes: $750 (first place), $500 (second place), or $250 (third place). Additionally, each winning author will receive a copy of the casebook Cases on Reproductive Rights and Justice, by Melissa Murray and Kristin Luker. The first place winner will also have a chance at publication with the NYU Review of Law and Social Change

January 31, 2017 in Abortion, Call for Papers, Reproductive Rights | Permalink | Comments (0)

Wednesday, October 12, 2016

Recognizing a Cause of Action for Reproductive Negligence

Dov Fox, Reproductive Negligence, Columbia L. Rev. (forthcoming)

Abstract:     

A pharmacist fills a prescription for birth control pills with prenatal vitamins. A lab loses a cancer survivor’s eggs. A clinic exposes embryos to Mad Cow. A sperm bank uses a donor of a different race. A geneticist predicts a healthy fetus would be born with a terrible disease. These transgressions go unchecked within a reproductive profession that operates virtually free of regulation. Victims who sue find the legal system treats their suffering as more trifle than tragedy. Courts don’t deny that specialists are to blame for botching a vasectomy or misimplanting an embryo. But in the absence of property loss or physical injury, they decline to recognize disrupted family planning as a serious and distinct harm worthy of legal protection.

This Essay introduces a right to recover for reproductive wrongs that: (1) impose procreation on people who undertook efforts to avoid it; (2) deprive those who pursued pregnancy or parenthood of that opportunity; or (3) confound more particular reproductive goals for a child with certain traits. This cause of action would measure these three injuries as a function of (a) their practical consequences for plaintiffs; and (b) the probability that misconduct was responsible for having caused those injuries. Damages would accordingly be reduced in cases of defective birth control based on the role of user error; in cases of lost embryos, depending on the severity of preexisting infertility; and in cases of prenatal misdiagnosis, in proportion to uncertainties in genetic testing.

 

October 12, 2016 in Reproductive Rights | Permalink | Comments (0)

Friday, July 29, 2016

Colorado Adds Pregnancy and Post-Partum to Anti-Discrimination Laws

Colorado Amends Discrimination Law to Accommodate Pregnant and Post-Partum Employees

On June 1, 2016, Gov. Hickenlooper signed into law Colorado House Bill 16-1438, requiring employers to provide reasonable accommodations for pregnant and post-partum employees (specifically, for applicants or employees with “health conditions related to pregnancy, the physical recovery from childbirth, or related conditions”). Employers who fail to do so may assert the affirmative defense of undue hardship. The amendments will become effective Aug. 10, 2016. Critically, there are posting and notification requirements. Starting Aug. 10, 2016, employers are required to provide notice to new employees, and by Dec. 8, 2016, notice to existing employees. Conspicuous notice must also be posted. . . .

 

[T]he General Assembly’s overarching policy goal is to provide pregnant and post-partum women workplace protections to ensure they can remain gainfully employed by ensuring: “full and equal protection for women in the labor force by requiring employers to provide reasonable accommodations to employees with conditions related to pregnancy, childbirth, or a related condition.” To that end, the Colorado Anti-Discrimination Act, C.R.S. §§ 24-34-401, et seq., was amended to prohibit an employer from discriminating against employees and applicants who have health conditions related to pregnancy, the physical recovery from childbirth, or related conditions. Specifically, employers must:

  •  provide reasonable accommodations unless that would cause undue hardships on the employer’s business;
  • not take adverse actions against employees who request or use a reasonable accommodation;
  • hire applicants despite the need to make a reasonable accommodation;
  • not require an applicant or employee to accept an accommodation that the employee did not require or that is not necessary to perform the essential job functions; and
  • not require leave if the employer can provide another reasonable accommodation.

July 29, 2016 in Equal Employment, Family, Reproductive Rights | Permalink | Comments (0)

Tuesday, July 12, 2016

From Standing With Planned Parenthood to Moving Forward

 Photo

Jamie R. Abrams joins us as a guest blogger for July.  She is a professor at the University of Louisville Brandeis School of Law where she teaches Torts, Family Law, Women & Law, and Legislation.   

 

Unqualifiedly, “I stand with Planned Parenthood,” consistent with the viral social media hashtag that so mobilized the reproductive rights movement this year.   I’ve made my donations.  I’ve changed my Facebook status picture.  I’ve defended the reputation and profound importance of Planned Parenthood.   

I also celebrated last month’s decision in Whole Woman's Health v. Hellerstedt  . . . but I did so more privately and discreetly, a point this blog seeks to explore.  Whole Woman’s Health challenged the motive and methodology of state legislatures enacting restrictive laws regulating abortion and abortion providers.  It concluded that the state does impose an “undue burden” on a woman’s right to choose when it enacts laws that are not medically justified and that restrict access to as many women as the Texas provisions did.  I celebrate this decision for its affirmation of the undue burden standard, its demand for sound legislation supported by medicine and science, and the potential it offers to push back on the increasing frequency and intensity of restrictive measures.

Yet, for the most significant Supreme Court decision protecting a woman’s right to choose in decades, what form of mobilized and energized support could be seen away from the Supreme Court steps?  I, for one, did not change my social media imagery.  In fact, I did not post anything on social media at all, not even a simple link to the decision or news coverage of it.  It seemed that only a small handful of my colleagues and friends who are active in this area posted anything other than a few vague social media posts best characterized as  “phew” points, more than substantive or celebratory posts.     

Interestingly, who was busy blogging and posting about women and what they need and what their rights are . . . . opponents to abortion access!  Notably, opponents to the decision were not characterizing this as judicial overreach or inconsistency – like the dissenting justices had – rather, they were tweeting and blogging about how the Supreme Court failed to protect women and make abortion safer for women. 

As we breathe a sigh of relief from this legislative and Supreme Court term, we now stand poised to assess the carnage of the past years, and the last year particularly, and to assess the reproductive rights movement’s trajectory.  Social movements, like the reproductive rights movement, are about collective action to bring change.  They require an oppositional frame and they develop a collective identity.  This collective identity defines what it means to join the movement and how its members recognize themselves and are recognized externally.  This creates a shared sense of oneness or we-ness.  Historic framings of reproductive rights were broadly tethered to larger understandings of women’s equal citizenship and participation in public and private life, including women’s health, women’s autonomy, and women’s freedom.

Contrasting the social and political responses to attacks on Planned Parenthood over the past year to responses to the Whole Woman’s Health decision or even contrasting social and political responses to Whole Women’s Health to historic reproductive rights successes, it merits thoughtful reflection on what the consequences have been to the reproductive rights social movement in having spent so much time in a defensive posture.  The movement’s defensive posture in the past year has forced us to shift our emphasis to the myopic focus on defending an institution instead of defending the people and issues that it protects, serves, and saves.  When I declare that “I stand with Planned Parenthood,” I am not declaring more directly the politically and historically grounded points that I stand for women’s equal autonomy to make medical decisions and the central importance of women’s reproductive autonomy to control their political, social, professional selves as men do.  This focus arose out of necessity, but centralizing a social or political movement so squarely around one institution a worrisome long-term strategy that places too much weight and pressure on the institution’s leaders?  Does this institutional focus compromise the collective action or “oneness” of women supporting reproductive rights more broadly?

As I defend the relevance and importance of Planned Parenthood, I worry that its four walls limit me and perhaps the movement’s trajectory.  As we stand and defend the four walls of Planned Parenthood and its access to funding, there is reason to worry that the opposition is swiftly co-opting the gendered framing of abortion and the broader rights at stake for women. 

I worry that the muted reaction to Whole Woman’s Health reveals a deeper shift and narrowing of the framing of the reproductive rights movement.  I write, not to be critical of the past, but looking to the future.  There was a critical time and need to “stand with Planned Parenthood.”  But we cannot maintain a movement for reproductive justice and women’s bodily autonomy just by defending the necessity and credibility of one institution or even one procedure.  I do stand with Planned Parenthood.  I also stand with midwives.  I also stand with birthing women . . . at home and in hospitals.  I stand with women seeking birth control, just as I stand with those not using birth control for reasons religious or otherwise.  As we move forward, now is the time to expand the base, expand the conversation, and reach for new allies, not narrow and institutionalize the conversation.  We stood in defense of a fortress when we needed to do so.  Now we must move forward in ways that restore a sense of “oneness” that is tethered to issues and people. 

July 12, 2016 in Abortion, Constitutional, Reproductive Rights, SCOTUS | Permalink | Comments (0)

Thursday, May 12, 2016

New MD Contraceptive Equity Act Insures Coverage of Birth Control

NWLC Blog, Victory for Birth Control in Maryland

The Maryland Contraceptive Equity Act of 2016 makes sure that women have insurance coverage of the specific birth control that their health care provider prescribes without out-of-pocket costs and requires insurance plans to cover up to six months of birth control dispensed at once....

 

While the federal Affordable Care Act’s (ACA) birth control benefit eliminated many cost barriers to birth control, even women eligible for this benefit may face difficulties getting coverage without cost of the specific birth control recommended by their health care providers.

 

That is because the ACA requires coverage without out-of-pocket costs of at least one item within each birth control method category for women, but plans can still use medical management techniques within a birth control method category, such as imposing costs on some pills while covering others without cost. Women often go without preventive health care because of costs, even small costs.  So, if a plan is still charging for the specific birth control a woman has chosen with her health care provider, that cost can be a barrier to accessing the care she needs.  The Maryland Contraceptive Equity Act of 2016 ensures that women have coverage without cost-sharing of the specific birth control recommended by their health care provider, facilitating women’s access to birth control and enabling them to use it more consistently.

May 12, 2016 in Healthcare, Legislation, Reproductive Rights | Permalink | Comments (0)

Wednesday, March 30, 2016

SCOTUS's Weird Call for Supplemental Briefing in Women's Contraception Coverage Case

A Puzzling Order in a US Supreme Court Case on Obamacare

Something strange is afoot at the U.S. Supreme Court. The justices issued a highly unusual order Tuesday for the parties in Zubik v. Burwell, one of this term’smost-watched cases.

How to Make Sense of the Baffling Order the Supreme Court Just Handed Down on Birth Control

The order instructs the parties in Zubik and a bevy of related cases to “file supplemental briefs that address whether and how contraceptive coverage may be obtained by petitioners’ employees through petitioners’ insurance companies, but in a way that does not require any involvement of petitioners beyond their own decision to provide health insurance without contraceptive coverage to their employees” (“petitioners” in this case, refers to the employers who object to birth control). In case that instruction is not clear, the order also offers an example of a possible regime that may survive review in the Supreme Court:

[T]he parties should consider a situation in which petitioners would contract to provide health insurance for their employees, and in the course of obtaining such insurance, inform their insurance company that they do not want their health plan to include contraceptive coverage of the type to which they object on religious grounds. Petitioners would have no legal obligation to provide such contraceptive coverage, would not pay for such coverage, and would not be required to submit any
separate notice to their insurer, to the Federal Government, or to their employees. At the same time, petitioners’ insurance company—aware that petitioners are not providing certain contraceptive coverage on religious grounds—would separately notify petitioners’ employees that the insurance company will provide cost-free contraceptive coverage, and that such coverage is not paid for by petitioners and is not provided through petitioners’ health plan

SCOTUS Asks Objectors to Contraceptive Opt-Out: Show us Better Alternatives

 

March 30, 2016 in Healthcare, Reproductive Rights, SCOTUS | Permalink | Comments (0)

Monday, March 28, 2016

Bibliography of Legal Commentary on Zubik Contraceptive Mandate Arguments

The Origins of the Undue Burden Standard for Assessing Abortion Regulations

Meaghan Winter, Slate, Roe v. Wade Was Lost in 1992: How "Undue Burden" Has Eroded the Right to Choose

Remembering the day Planned Parenthood v. Casey (1992) was decided:

“We conclude that the central holding of Roe should be reaffirmed,” O’Connor read that June morning in 1992. Miller, by then the head of communications for the newly formed Center for Reproductive Law and Policy, was awed. Here was the first woman ever to sit on the Supreme Court asserting women’s right to abortion. “Oh my God, did we just win?” Miller remembers thinking. “How it that possible?”

 

But O’Connor kept reading. In “reaffirming” Roe, the court had also mostly upheld four of the five restrictions put in place by the Abortion Control Act, only invalidating the spousal notification law. Abortion remained legal, but the judges introduced two caveats. One was that the states had a compelling interest in protecting unborn life from the “outset of pregnancy”—a stark departure from Roe, which held that states had no such interest until after the first trimester. The other was that states would be able regulate abortion unless their laws “unduly burden” a woman’s right to choose abortion.

 

Miller, who is now the president of the National Institute for Reproductive Health, remembers her mind spinning. What was an “undue burden”? How could the Pennsylvania restrictions stand if Roe stood too?

And citing my work on the backstory of  Akron v. Akron Center for Reproductive Health (1983)  where Justice O'Connor first articulated the undue burden standard in dissent.  See Tracy A. Thomas, Back to the Future of Regulating Abortion in the First Term, 28 Wisc. J. Law,  Gender & Society 47 (2013).  

One attorney described the multipart ordinance as “a Christmas tree,” with everything possible hanging off it: a parental consent rule, a mandatory waiting period, and “informed consent” counseling. The attorneys designed it to be a national model. After Kapper proposed the law, experts from cities all over the U.S descended on Akron for four public hearings held over several weeks. Tracy Thomas, associate dean at University of Akron School of Law, later recounted how hundreds of divided locals watched John Willke of National Right to Life, a hero of the anti-abortion movement, present a slideshow of fetal life. (It’s hard to imagine now, but disturbing audiences with images of fetuses was then a cutting-edge tactic.) Gynecologists slated to appear at the hearings were so angered by the anti-abortion advocacy that they walked out without testifying. Shouting erupted in the hallway outside the hearing room.

 

Viewers watching an anti-abortion representative from Akron on the Today show might have been impressed with what seemed to be the anti-abortion movement’s grassroots organizing skills. But its advocacy wasn’t as homegrown as it appeared.

O'Connor took the position, in part, offered by Prexident Reagan's solicitor general, Rex Lee, adopting the deferential balancing approach of "undue burden."  See LeeAmicusBriefAkron.  The "unduly burdensome" standard had appeared in prior Supreme Court abortion decisions by Justices Powell (Maher v. RoeBelliotti v. Baird II (1979)) and Blackmun (Belliotti v. Baird (1976), but O'Connor converted it into a litmus test, rather than a conclusion.  And she utilized the test in order to uphold much government regulation, rather than strike down legislation, as the Court had previously used it in three out of four cases except funding.  Powell explicitly rejected the undue burden test in Akron, writing the majority opinion invalidating the 17 provisions of the Akron law on informed consent, waiting periods, and hospital regulations, suggesting that he did not intend his previous unduly burdensome language to be used as the constitutional standard.   

 

March 28, 2016 in Abortion, Constitutional, Legal History, Reproductive Rights, SCOTUS | Permalink | Comments (0)

Monday, March 21, 2016

SCOTUS Coming Up: A Transnational Perspective on Religious Liberty and the Contraceptive Mandate

Douglas NeJaime & Reva Siegel, Conscience Wars in Transnational Perspective: Religious Liberty, Third-Party Harms, and Pluralism

Abstract:     

Those who believe contraception, abortion, and same-sex relationships are sinful are increasingly seeking religious exemptions from laws protecting these practices. This essay examines the spread of culture-war conscience claims in the United States and across borders.
 
Religious liberty claims asserted in these culture-war contexts differ from claims for the accommodation of religious ritual observance in ways that warrant principled legal response. When a person of faith seeks an exemption from legal duties to another in the belief that the citizens the law protects are sinning, granting the religious exemption can inflict material and dignitary harms on those whom the law protects. Employing cross-borders comparisons to illustrate, we argue that religious accommodation of such claims serves pluralist ends only when the accommodation is structured to shield other citizens from harm. Our analysis includes the U.S. Supreme Court’s recent decision in Burwell v. Hobby Lobby Stores and its forthcoming decision in Zubik v. Burwell and reaches beyond U.S. borders to the European Court of Human Rights, including its decision in Eweida and Others v. United Kingdom.

 

March 21, 2016 in International, Reproductive Rights | Permalink | Comments (0)

SCOTUS Coming Up: Little Sisters Case Goes Too Far

Doug Laycock, Wash Post, How the Little Sisters of the Poor Puts Religious Liberty at Risk

Zubik v. Burwell is the Supreme Court’s name for the set of cases more often identified with the Little Sisters of the Poor, a religious order that is also a party to the case. I filed an amicus brief in Zubik on behalf of the Baptist Joint Committee for Religious Liberty. I had never before filed a brief in support of the government in a case about the free exercise of religion. ****

The second, and even more dangerous argument: These organizations say that because the government exempted the insurers of churches and their integrated auxiliaries, it is required to exempt the insurers of all other conscientious objectors as well. Otherwise, it discriminates between two groups of religious organizations.

This argument is a mortal threat to an essential and widespread source of protection for religious liberty. There are thousands of specific religious exemptions in U.S. law. If legislators and administrative agencies cannot enact a narrow religious exemption without it being expanded to become all-inclusive, many of them will not enact any religious exemptions at all. And they will start repealing the exemptions they have already enacted.

 

March 21, 2016 in Religion, Reproductive Rights, SCOTUS | Permalink | Comments (0)

SCOTUS Coming Up: Why the Contraception Mandate Survives Strict Scrutiny

Caroline Mala Corbin, The Contraception Mandate Accommodation: Why the RFRA Claim in Zubrik v. Burwell Fails

The Affordable Care Act requires that health care plans include all FDA-approved contraception without any cost sharing. In Hobby Lobby v. Burwell, for-profit businesses with religious objections successfully challenged this “contraception mandate.” In this term’s Zubik v. Burwell, it is religiously affiliated nonprofits like Baptist universities and Catholic Charities challenging the contraception benefit. But there is a major difference: these religiously affiliated nonprofits are exempt from the contraception mandate. Once they certify that they are religiously opposed to contraception and notify either their insurance carriers or the Department of Health and Human Services, the responsibility for contraception coverage shifts to private insurance companies. The nonprofits do not have to provide, pay for, or even inform their employees or students of the separate coverage.

Despite the ability to opt out of contraception coverage, many nonprofits complain that the religious accommodation itself imposes a substantial religious burden in violation of the Religious Freedom Restoration Act (RFRA). According to these nonprofits, providing notice of their objections triggers the provision of contraception to their employees and students, thus making them complicit in sin. Their RFRA claim cannot succeed. RFRA requires that the contraception regulations impose a substantial religious burden and fail strict scrutiny, and neither requirement is met. First, filing paperwork to receive an exemption is not a substantial burden on the nonprofits’ religious exercise. The nonprofits’ claims to the contrary are based on a mistake of law, and while court must defer to the nonprofits’ interpretation of religious theology, courts should not defer to their interpretation of federal law. Second, the contraception mandate passes strict scrutiny: it advances compelling government interests in women’s health and equality, and the accommodation provided to objecting nonprofits is the least restrictive means of accomplishing those interests.

March 21, 2016 in Constitutional, Reproductive Rights, SCOTUS | Permalink | Comments (0)

Wednesday, February 24, 2016

Ziegler on Choice at Work: Pregnancy Discrimination and Reproductive Rights

Mary Ziegler (Florida State), Choice at Work: Young v. UPS, Pregnancy Discrimination, and Reproductive Liberty, 93 Denver L. Rev. 219 (2015).

Abstract:

In deciding Young v. United Parcel Service, the Supreme Court has intervened in ongoing struggles about when and whether the Pregnancy Discrimination Act of 1978 (PDA) requires the accommodation of pregnant workers. Drawing on original archival research, this Article historicizes Young, arguing that the PDA embodied a limited principle of what the Article calls meaningful reproductive choice. Feminist litigators first forged such an idea in the early 1970s, arguing that heightened judicial scrutiny should apply whenever state actors placed special burdens on women who chose childbirth or abortion.

 

A line of Supreme Court decisions completely rejected this understanding of reproductive liberty. However, choice arguments rejected in the juridical arena flourished in Congress, during debate about the PDA. For a variety of strategic and ideological reasons, legal feminists and antiabortion activists turned to legislative constitutionalism to give meaning to the idea of reproductive liberty. While not requiring employers to provide any accommodations, the PDA prohibited employers from placing special burdens on women’s procreative decisions.

 

The history of the meaningful-choice principle suggests that while the Court reached the right outcome, Young still falls short of providing women the protection intended by the framers of the PDA. By a 6-3 vote, the Court vacated a Fourth Circuit decision vindicating United Parcel Service’s “pregnancy-blind” employment policy—that is, the policy effectively excluded pregnant workers but did not formally categorize them on the basis of pregnancy. In its application of the McDonnellDouglas burden-shifting analysis, Young removed some of the obstacles previously faced by pregnant workers relying on disparate treatment theories. However, the Court still assumes that employers could have legitimate reasons for discriminating against pregnant workers beyond their ability to do a job, creating precisely the kind of burdens on

February 24, 2016 in Abortion, Pregnancy, Reproductive Rights | Permalink | Comments (0)

Thursday, February 18, 2016

Including a Gender Perspective in Human Rights Work

Ciara O'Connell, Engendering Reproductive Rights in the Inter-American System, in Gender, Sexuality and Social Justice: What's Law Got to Do With It?, Kay Lalor, Elizabeth Mills, Arturo Sánchez García and Polly Haste, eds., p. 58, Institute of Development Studies, 2016

Abstract:     

The challenge of including a gender perspective within human rights work has been a project only recently undertaken by the international human rights community. It is undeniable that much progress has been made over the past two decades in regard to advocacy and legal efforts to protect, promote and fulfil women’s human rights. However, there remain significant shortcomings in how the law is used to address systemic conditions that cause the subordination of women. This article seeks to explore the gap that exists between women’s rights rhetoric and implementation at the national level. An examination of women’s reproductive rights in the Inter-American System of Human Rights serves as a lens by which to explore how international human rights bodies fall short in addressing the gendered implications of women’s rights violations as they are embedded in national cultures.

 

February 18, 2016 in International, Reproductive Rights | Permalink | Comments (0)

Tuesday, January 19, 2016

The Specifics on How Title IX Sexual Violence Cases Were Resolved

Chronicles, How 46 Title IX Cases Were Resolved

Since the U.S. Department of Education’s Office for Civil Rights signaled stricter enforcement of Title IX in April 2011, it has resolved 46 investigations of colleges for possible violations of the gender-equity law involving alleged sexual violence. You can explore all investigations in this wave of enforcement and learn more with The Chronicle’s Title IX investigation tracker.

  • 30 Resolution Agreements
  • 7 Administratively Closed
  • 4 Settled Through Early-Complaint Resoultion
  • 3 Insufficient Evidence
  • 2 Unknown Resolution

 

 

January 19, 2016 in Reproductive Rights | Permalink | Comments (0)

Friday, January 1, 2016

Looking Ahead to 2016 on Women's Reproductive Rights

Here's Why 2016 Could be the Biggest Year for Reproductive Rights and the Courts in Decades

The next year promises to be an eventful one on the legal front—though we feel like we say that every December. After all, 2015 brought challenges to the Pregnancy Discrimination Act; a case on whether not hiring an employee because she wears a hijab is employment discrimination; the historic and successful challenge to same-sex marriage bans; the failed challenge to federal subsidies in the Affordable Care Act; and a failed attempt to gut the Fair Housing Act. Meanwhile, 2014 was the year the Roberts Court gave the green light to governments embracing prayer at civic functions; it also struck most abortion clinic buffer zones as unconstitutional in McCullen v. Coakley. And who could forget Hobby Lobby v. Burwell, the case in which the Roberts Court created a constitutional corporate right to object to contraception coverage?

 

Even so, 2016 is still shaping up to be an important year for reproductive rights and justice. Some cases on the list to watch—like yet another challenge to the birth control benefit in the Affordable Care Act—we anticipated. Other cases, like the trial in Colorado of Robert Lewis Dear Jr., who is accused of launching a siege at a Planned Parenthood health-care center in Colorado Springs that killed three, injured nine, and terrorized many others, we wish were not here at all. But given the violent rhetoric targeting abortion doctors, providers, and patientsthat increased over the course of 2015, we can’t say we were surprised to put it there.

January 1, 2016 in Reproductive Rights | Permalink | Comments (0)

Thursday, December 31, 2015

Looking Back on 2015 and Advances for Pregnant Worker Fairness

Looking Back: NWLC, 2015 in Review:A Year of Major Milestones in the Fight for Pregnant Worker Fairness

In 2015, something that rarely happens happened. The Supreme Court, the United States Congress, and state legislatures all started to get on the same page. Fairness for pregnant workers was what brought them all together. Despite the many diverse views these institutions represent, they agreed that ensuring pregnant workers’ health and economic security is paramount. Here are 2015’s top highlights in the fight for fairness for pregnant workers.

 

December 31, 2015 in Family, Reproductive Rights | Permalink | Comments (0)