Friday, June 7, 2013
Guest Blogger Professor Jessie Hill - Regulating Reasons:The ACLU Challenges Arizona’s Ban on Sex- and Race-Selective Abortion (Part I)
As a long-time lurker on the HealthLawProf Blog, I want to thank Katharine Van Tassel for inviting me to guest blog during the month of June. My scholarship and primary interest are at the intersection of health law and constitutional law, especially reproductive rights, which will be the subject of my posts this month.
In this first post I’d like to explore the recent ACLU lawsuit challenging the Arizona state law that, among other things, prohibits anyone from providing an abortion “knowing that the abortion is sought based on the sex or race of the child or the race of a parent of that child.” The complaint is available here.
Styled the “Susan B. Anthony and Frederick Douglass Prenatal Nondiscrimination Act of 2011,” the law seems to be premised on rather bizarre and racist notions. According to the complaint, the law was motivated by legislators’ beliefs that 1) the disproportionately high abortion rate among black women indicates that these women are intentionally de-selecting fetuses of their own race, possibly as a partial result of a plot by some abortion providers to eliminate African-Americans; and 2) sex-selective abortion is going to be a problem in Arizona simply due to the fact that the state has a growing Asian population, who are assumed to engage in the practice of de-selecting female fetuses through abortion. I haven’t ersonally reviewed the legislative history, but some of the quotes contained in the complaint are, frankly, shocking.
These sorts of laws raise all kinds of interesting issues, but I’d like to focus on two particularly interesting aspects of the complaint itself – one in this post and one in my next post.
First, it is notable that this law is challenged as a violation of the Equal Protection Clause, not the substantive due process right to privacy. The equal protection theory is that the law stigmatizes black and Asian women as either intentionally engaging in a form of gender and race genocide (against members of their own race and gender, no less). It is based on stereotypes and assumptions about members of particular races that are wholly unfounded. Therefore, it has a discriminatory purpose. It also has a discriminatory impact in that its effect will be to single out the abortion choices of black and Asian women for particular scrutiny.
This argument strikes me as fairly strong. Surely, there is a racial motivation behind this law, and it is hard to imagine that the legislature meant to raise doubts about the reproductive choices of white women in the same way. But it seems to me that there could be a privacy challenge to the law as well: the law regulates the subjective, personal reasons why a woman may choose abortion, which seems to fly in the face of the very notion of a right to “privacy.” Such a regulation is, to my knowledge, unprecedented since Roe v. Wade. Though this proposition has never been explicitly articulated by the Supreme Court, it seems to me that if the right to privacy in reproductive decision-making means anything, it means that individuals have the right to make those choices for whatever reason they deem appropriate, without government oversight or approval.
Or does it? Human rights advocates decry the practice of sex-selective abortion in other countries, and my understanding is that India’s ban on the practice is not generally considered controversial among feminists. Why, then, does the ban seem particularly troubling and off-key in the American context? Is it simply because there is no reason to think that the practice is widespread here? Or because our constitutional jurisprudence and popular discourse place abortion in a “privacy” framework, rather than an “equality” framework? In any case, I can’t help but wonder whether the philosophical difficulties that opposition to a sex-selective abortion ban might create for feminist lawyers is the reason why the ACLU attorneys chose to frame the complaint as they did.
Wednesday, June 5, 2013
A case from the employment discrimination world that might be of interest to health law folks is EEOC v. Houston Funding II, Ltd., 2013 U.S. App. LEXIS 10933 (May 30, 2013). The employee in the case, Donnicia Venters, was told that her position had been filled when she returned to work post partum and requested to use space in a back room to express milk. The issue in the case was whether firing Venters for expressing breast milk is sex discrimination under Title VII of the Civil Rights Act. The district court had concluded that it was not, as a matter of law, and the 5th Circuit reversed. Although at first glance this outcome is apparently a favorable one for women and children, it also reveals ongoing mismatches between anti-discrimination law in the US and the health needs of workers and their families.
The relevant detail of employment discrimination law is that the Pregnancy Discrimination Act (PDA) provides that discrimination “on the basis of” or “because of” sex includes discrimination on the basis of or because of “pregnancy, childbirth, or related medical conditions.” In holding that breastfeeding is a related medical condition of pregnancy, the 5th Circuit stated “Lactation is the physiological process of secreting milk from mammary glands and is directly caused by hormonal changes associated with pregnancy and childbirth.” Thus, on the 5th Circuit’s plain meaning interpretation of the statute, breastfeeding is within the PDA.
Other courts have reached conclusions less favorable to breastfeeding. The district court in Colorado wrote thus in deciding that a refusal to give breaks for breast feeding was not sex or disability discrimination: “A plaintiff could potentially succeed on a claim if she alleged and was able to prove that lactation was a medical condition related to pregnancy, and that this condition, and not a desire to breastfeed, was the reason for the discriminatory action(s) that she suffered.” Falk v. City of Glendale, 2012 U.S. Dist. LEXIS 87278 (D. Colo. 2012). Indeed, understaffing at the Glendale police department was so severe that no one was able to take breaks, even to use the restroom—so the court concluded that Falk’s problem was equal opportunity bad working conditions, not sex discrimination.
The 5th Circuit reads these cases as refusals to grant accommodations under Title VII or the ADA, and thus distinguishes them. In her concurrence, Judge Edith Jones specifically calls out the court’s understanding that accommodations are not available for breastfeeding—and indicates as well that permitting accommodations might be problematically unlimited: “Indeed, if providing a plaintiff with special accommodation to pump breast milk at work were required, one wonders whether a plaintiff could be denied bringing her baby to the office to breastfeed during the workday.” (I can’t resist commenting that a pump and a bottle of milk are hardly the disturbance that a crying baby on site might be.) The PDA prohibits differential treatment on the basis of sex but does not require any accommodations for pregnancy or lactation: Venters won not because she asked for time to express milk but because her employer disapproved of her breastfeeding. The Americans with Disabilities Act might be a different story as it is discrimination to fail to provide reasonable accommodations for qualified persons with disabilities—but for the fact that many courts have ruled that normal pregnancy and birth are not disabilities.
The American Academy of Pediatrics recommends breastfeeding as the exclusive source of infant nutrition for the first six months. Healthy People 2020 targets are 60.5% breastfeeding for 6 months, 23.7 exclusive breastfeeding for 6 months, and 38% workplace support for lactation. Failure to breastfeed is associated with higher rates of hospitalization for respiratory illness, higher rates of otitis media, higher rates of gastrointestinal disease, higher rates of obesity and diabetes, and many other health problems.
The Family Medical Leave Act requires up to three months of unpaid leave for covered workers. Women who try to return to work after exhausting their FMLA leave and who find themselves with unaccommodating workplaces may thus face a very unpleasant choice: drop out of the work force (or be fired like Venters or Falk) or risk the health of their children. US anti-discrimination law is of little help to them, all too often regarding breastfeeding as a “lifestyle” rather than a health issue.
Monday, June 3, 2013
HealthLawProf Blog is honored to introduce Professor Jessie Hill, BA 1992 (Brown), JD 1999 (Harvard), as our guest blogger for the month of June. Professor Hill is the Associate Dean for Faculty Development and Research and the Laura B. Chisolm Distinguished Research Scholar at Case Western Reserve School of Law. Here is her short bio:
Ms. Hill joined the faculty in 2003 after practicing First Amendment and civil rights law with the firm of Berkman, Gordon, Murray & DeVan in Cleveland. Before entering private practice, Ms. Hill worked at the Reproductive Freedom Project of the national ACLU office in New York, litigating challenges to state-law restrictions on reproductive rights. She also served as law clerk to the Honorable Karen Nelson Moore of the United States Court of Appeals for the Sixth Circuit. Ms. Hill's teaching focuses on constitutional law, federal civil procedure, civil rights, reproductive rights, and law and religion. Her scholarship has been published in the Michigan Law Review and the Texas Law Review, among others.