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Roe v. Wade is Overturned.  But the US doesn’t do enough to protect women and pregnant women from discrimination, so now what?

Posted by Giovanna A. D'Orazio | Jun 28, 2022

What Happened?

On June 24, 2022, the United States Supreme Court reversed Roe v. Wade, overturning 50 years of women's constitutionally protected reproductive rights.  The case is Dobbs v. Jackson Women’s Health Organization, one that will now live in infamy for supporters of women's bodily autonomy and reproductive freedom – and be taught to law students in their Constitutional Law classes as one of the very few times the Court not only refused to follow stare decisis (the principle that cases are decided based on precedent) but reversed itself to take away individual rights rather than give them (the first time this has happened). 

In his concurring opinion, Justice Thomas took things a step further and called for all substantive due process cases to be revisited (substantive due process is a 14th Amendment concept that includes rights like privacy, that, in simplest terms, Justice Thomas does not think is a “thing”).  What would this include?  Cases on contraception, same-sex relationships and same-sex marriage (he specifically called those cases out by name).

Are Women Protected in the Constitution?

The late Justice Ruth Bader Ginsburg was afraid that Roe was vulnerable because it was decided as a right to privacy with your physician case, as opposed to an equal protection/sex discrimination case.  Even if that would have been a stronger argument - and personally, I hope that people challenge abortion bans under state constitutions based on this argument - even so, at this time, there is no federal Constitutional amendment specifically directed to protecting sex.  The Equal Rights Amendment passed, but was not ratified by the States by a set deadline so it was never added to the Constitution.  Because Virginia ratified the amendment in 2020, there are now enough states to do so, but it hasn't happened. 

Without getting into a constitutional law discussion outside the scope of this article, the fact that sex discrimination is not expressly addressed in the Constitution is why we end up with cases like Dobbs, relying on antiquated laws and history in effect at the time of the ratification of the 14th Amendment, when women had no say, to come to their conclusions.  People have pointed out that Justice Thomas – who is Black and married to a white woman – conveniently leaves out interracial marriage when he lists out cases that should be reversed.  But, Loving v. Virginia, the interracial marriage case, is not only a due process case, it's an equal protection case.  And protections against race discrimination, unlike sex, are in the Constitution and laws based on race receive the highest level of constitutional scrutiny – sex does not.

Why Are We Upset?  A million reasons but we'll focus on our wheelhouse: employment discrimination.

To say that we are troubled is a vast understatement.  Not only because we believe that depriving women of bodily autonomy also deprives them of true equality but also because, as employment lawyers, we know that this country doesn't do much to support pregnant women and families. 

Here are some reasons why it's hard to accept that recent abortion bans, which were passed with the intended purpose of giving the Supreme Court the opportunity to reverse Roe (mission accomplished!), are really about protecting “life”:

  • No federal law requiring reasonable accommodations for pregnancy related medical conditions. Ironically, given the pro-birth context, this results in miscarriage.  The physical toll of pregnancy discrimination was discussed in a recent New York Times article that you can read here.    
  • No federal law requiring paid maternity leave.
  • No federal law requiring paid time off for prenatal appointments.
  • No federal law requiring leave (paid or unpaid) for a pregnancy related medical condition, that would not count against your actual maternity leave once the baby is born. 
  • The only federal guarantee for protected, unpaid maternity leave (or time off for prenatal appointments) applies only to public employers and private employers with 50 or more employees. Think about how many people you know who would not be covered.
  • Federal unpaid maternity leave is a maximum of 12 weeks. If you had to take time off for any other reason covered by the FMLA during the preceding 12 months (including in connection with your pregnancy, or to care for a sick child or spouse), your 12 weeks of maternity leave will be reduced.
  • Some courts have held that pregnancy discrimination includes breastfeeding, but this is not explicitly in the law.  (Employer must have 12 employees or more to be covered by Title VII, the federal employment discrimination statute)
  • Max 12 weeks of unpaid leave to care for a child with a serious health condition (only for public and over 50-employee employers).
  • No such thing as “familial status” discrimination under federal employment law.
  • No such thing as a reasonable accommodation to care for a child with a disability. (There is associational disability discrimination, but it does not include accommodations).  

The biggest irony is perhaps the fact that anti-choice politicians also try to restrict access to contraceptives.  For example, the prior Trump administration attempted to rescind an Obama-era rule that required employers to provide contraceptive coverage at no cost as part of preventive care under the Affordable Care Act.  The move was later blocked by the courts.  You can read more about that here.  Supreme Court precedent has also limited employer obligations with respect to contraceptive coverage based on their alleged religious beliefs (you may have heard of the Hobby Lobby case). 

We respect and acknowledge that there are individuals who have a genuine religious or moral objection to abortion.  We also acknowledge that at least some of those people also extend their pro-life stance to other areas of life that have become political, such as caring for refugees and immigrants or advocating for the protections like we discussed in this article.  But we have serious concerns about the state injecting itself into the most private part of a woman's life, while simultaneously undermining a woman's ability to prevent pregnancy in the first place as well as to adequately care for herself and her child while pregnant and after birth while, as pertinent to our practice, continuing to remain employed.

If you believe you have been the victim of pregnancy discrimination or have been fired in connection with a maternity or other medical leave, contact us. We're happy to see if we can help.

About the Author

Giovanna A. D'Orazio

Giovanna has experience litigating, among other things, commercial, general civil, employment, land use and personal injury matters in New York State and federal courts. Giovanna focuses her practice on plaintiff's employment and personal injury matters, with a particular interest in women's rights and employment discrimination and harassment.

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