Caroline Bettinger-Lopez and Susan Sturm on Litigation-Centered Mobilization and Fetal Protection Policies

Caroline Bettinger-Lopez and Susan Sturm, both of Columbia Law School, have posted International Union, U.A.W. v. Johnson Controls: The History of Litigation Alliances and Mobilization to Challenge Fetal Protection Policies on SSRN. The article will be included in Civil Rights Stories, a book edited by Myriam Gilles and Risa Goluboff that will be published by the Foundation Press this year. Here is the abstract:

The Supreme Court's decision in Johnson Controls is the culmination of a long legal campaign by labor, women's rights, and workplace safety advocates to invalidate restrictions on women's employment based on pregnancy. This campaign powerfully demonstrates the use of amicus briefs as opportunities to link the efforts of groups with overlapping agendas and to shape the Supreme Court's understanding of the surrounding empirical, social and political context. But Johnson Controls also provides important lessons about the narrowing effects and fragility of litigation-centered mobilization. The case affirmed an important anti-discrimination principle but ironically left women (and men) with the "right" to work in unsafe workplaces. The national coalition that had organized in support of the Johnson Controls plaintiffs did not stay together to address these complex issues after the case was won. Instead, the coalition disbanded and its members moved on to pursue diverse and separate agendas.

The Johnson Controls story poses important questions about social justice advocacy in the current legal and political environment. What does a litigation-centered mobilization mean for how problems are defined and addressed? How does it determine who participates in and influences the course of advocacy? Can a national law reform campaign sustain public attention to problems not addressed by a legal claim? Can it maintain crucial alliances when litigation ends? How do political realities shape legal advocacy? This Law Stories chapter addresses these questions by comparing the national legal mobilization strategy in Johnson Controls with an analogous strategy adopted by advocates in California in the 1980s and 1990s to address reproductive workplace hazards. In contrast to the national coalition's focus on establishing a legal principle, the state strategy embraced a problem-oriented approach to reproductive hazards in the workplace, using litigation and the sex discrimination framework as only one component of a long-term strategy that involved public education and outreach, legislative advocacy, and regulatory reform. As today's federal courts become less available as a site for advancing rights, these problem-oriented approaches to advocacy become more salient and provide important models for public interest lawyers seeking ways to use law to mobilize change.