Today has been designated a national day of action in response to various abortion bans that have been enacted across the country recently. These bans are part of an effort to pass a law the constitutionality of which is so questionable that it can be taken to the Supreme Court to challenge Roe v. Wade. The most extreme of these is in Alabama, which not only imposed severe criminal penalties for women and doctors but does not include exceptions for rape or incest (and an amendment to add these exceptions was voted down).
We are troubled 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 we are skeptical of the true motives behind these bans and the prioritization of curbing women's rights as opposed to expanding protections for women and families:
- 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.
- The only federal guarantee for unpaid maternity leave (or time off for prenatal appointments) applies only to public employers and private employers with more than 50 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 (including in connection with your pregnancy, or to care for a sick child or spouse), your 12 weeks will be reduced.
- Some courts have held that pregnancy discrimination includes breastfeeding, but this is not explicitly in the law.
- Max 12 weeks of unpaid leave to care for a child with a serious health condition.
- No such thing as “familial status” discrimination under federal employment law. (There is under federal housing 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 the current administration has also made moves to restrict access to contraceptives. For example, the Trump administration recently 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.
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 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.