Tuesday, April 9, 2019
Reproductive Rights Stories: FMLA and the Supreme Court's Decision in Nevada Dept of Human Resources v. Hibbs
Sam Bagenstos, Nevada Department of Human Resources v. Hibbs: Universalism and Reproductive Justice"
Reproductive Rights and Justice Stories (Melissa Murray, Kate Shaw & Reva Siegel, eds., Forthcoming)
The Family and Medical Leave Act (FMLA) was the first bill signed into law by President Bill Clinton — just two weeks after he took office. Enactment of the statute was a longstanding goal of the Democratic Party. It also represented a legislative victory for what I will call feminist universalism — the notion that sex equality is best served by rules and policies that reject differentiation between women and men. Ten years after Congress enacted the FMLA, the Supreme Court upheld the statute against a constitutional challenge in Nevada Department of Human Resources v. Hibbs. The Hibbs Court, in a surprising opinion by Chief Justice Rehnquist, relied heavily on feminist universalist arguments. Even at the time of Hibbs, though, evidence was accumulating that the FMLA’s universalist approach was not sufficient to achieve the underlying goals of feminist lawyers and activists: disestablishing gender-role stereotypes and promoting equal opportunities for women and men throughout society. Hibbs thus represents the triumph of feminist universalism, even as it highlights the limitations of the feminist universalist project.