May 10, 2015

What Women Worry About When They Worry About the Supreme Court

Cynthia L. Cooper

With a record high number of three women Justices sitting on the bench of the U.S. Supreme Court, including Justice Ruth Bader Ginsburg, a leading architect of gender equality litigation, what could possibly worry women’s rights advocates?

Plenty, it seems.

“You’re always looking for five,” says Louise Melling, deputy legal director of the American Civil Liberties Union (ACLU) in New York City.

Although Ginsburg, Justice Sonia Sotomayor, and Justice Elena Kagan are often joined by fellow moderate Justice Stephen G. Breyer on decisions supporting women’s rights, they are still one vote short of the magic five for a majority. Justice Antonin Scalia, Justice Clarence Thomas, Chief Justice John G. Roberts Jr., and Justice Samuel Anthony Alito Jr. form a deeply conservative bloc, while Justice Anthony M. Kennedy has long been considered a “swing” vote—a conservative who sometimes votes with the moderate wing.

Rulings led by the current group of conservative justices have effectively rolled back or weakened laws that directly affect women on birth control, abortion, and sex discrimination. Increasingly, advocates see decisions from the conservative bloc taking stabs at other government protections that have an inordinate impact on women’s lives—voting, fair housing, and workers’ rights among them.

“It’s hard to think of cases that don’t affect women, of course,” says Michelle Schwartz, director of justice programs at the Alliance for Justice, a progressive Washington, D.C., organization that monitors judicial developments. “But there are a lot of potential landmines.”

Reenergized Conservative Bloc Thwarts Advancement, 5–4

If women’s rights advocates want to know when things turned sour, they might look to January 31, 2006. That’s when conservative hardliner Alito replaced the more moderate conservative Justice Sandra Day O’Connor. Today, women’s rights litigators might justifiably panic upon learning that Alito is delivering the majority opinion in a given case.

“Justice Alito has authored some of the worst decisions striking at the rights of women to control their lives, both at home and in the workplace,” Schwartz says.

The 2007 opinion Alito wrote in Ledbetter v. Goodyear Tire & Rubber Co. (550 U.S. 618) earned a sharp rebuke from Ginsburg, who said the majority “does not comprehend, or is indifferent to,” pay discrimination. The 5–4 decision negated the claim of Lilly Ledbetter, who for years was unknowingly paid less than male counterparts. The majority turned her away because she had not filed a claim within 180 days of the first act of discrimination.

On the last day of the term in 2014, Alito delivered two harsh opinions that put women in a vise. Public attention went to the Alito-authored 5–4 majority opinion in Burwell v. Hobby Lobby Stores, Inc. (573 U.S. ___, 134 S. Ct. 2751), subordinating women’s access to contraception to the religious beliefs of their employer (see the Hobby Lobby article beginning on page 8 of this issue).

A less-noticed case concerned the collection of union dues for publicly employed home health care workers. In Harris v. Quinn (573 U.S. ___, 134 S. Ct. 2618), the 5–4 majority opinion by Alito rejected the previously established right of a union to collect dues for collective bargaining from all public employees who benefit. The court declared that the health care workers were “quasi” state employees not entitled to the same protection as others. “You question whether that’s because they are overwhelmingly women,” Schwartz says.

Avoiding the Worst on Pregnancy Discrimination

A potential trip wire was narrowly avoided in a spring decision on pregnancy discrimination. An opinion released on March 25 in Young v. United Parcel Service Inc. (575 U.S. ____, 2015 WL 1310745) set up a new layer of inquiry when a claim is made by a pregnant woman for failure to provide work accommodations.

“This has been the big pregnancy discrimination issue brewing for more than 10 years,” says Joanna L. Grossman, a professor of law at Hofstra Law School in Hempstead, New York. She wrote an amicus brief in support of plaintiff Peggy Young.

Young worked as a driver at United Parcel Service (UPS) when she became pregnant in 2006. Upon her doctor’s advice, she asked to be reassigned to light-duty work that would limit lifting to 20 pounds. UPS refused, although other workers apparently received accommodations for injuries or disability. Young sought relief under a clause of the Pregnancy Discrimination Act of 1978 that states pregnant women are to be treated the same as others with work inabilities.

Writing for the 6–3 majority, Breyer vacated the Fourth Circuit’s decision and remanded the case for reconsideration under a broad new test of shifting burdens that is often used in sex discrimination cases. The court said that once a pregnant woman sets out a prima facie case of discrimination based on a failure to accommodate her, an employer may seek to justify its actions by relying on “legitimate, nondiscriminatory” reasons that are not based on cost or inconvenience. The plaintiff pregnant woman may reach a jury on the issue by providing sufficient evidence that the employer’s policies impose a significant burden on pregnant workers and that the employer’s reasons are not strong enough to justify the burden but may be inferred as intentional discrimination.

“The law is more protective of women than before, but there was no reason to add to the proof structure,” Grossman says. “Pregnancy discrimination is very much alive and well in the modern workplace. There will be plenty of litigation going forward.”

Most unusual, swing voter Kennedy voted in dissent, while Alito, in a separate concurrence, voted with the majority.

Looming Anxieties on Reproductive Rights

The future of reproductive rights before the Supreme Court is wracked with tension for women’s rights litigators. Although the Supreme Court has decided three dozen abortion rights cases since Roe v. Wade (410 U.S. 113) in 1973, none on the merits of abortion have been heard since 2007—and that one did not go well for abortion rights supporters.

“No one goes into the Supreme Court from the world of abortion with a really good feeling,” ACLU’s Melling says.

The last abortion rights case decided by the Supreme Court was Gonzales v. Carhart (550 U.S. 124) in 2007. In a 5–4 decision, the court said that the federal government’s ban on a particular medical procedure for abortion care (called “partial birth abortion” by the court) did not place an undue burden on women. Remarkably, in 2000, with O’Connor on the bench, the court made the opposite decision and rejected a nearly identical state ban.

A decision by the court in 2014 did not rule on abortion per se, but on clinic security. It did not go well for clinics. In McCullen v. Coakley (573 U.S.___, 132 S. Ct. 2566), the court unanimously struck down a 35-foot fixed buffer zone designed to protect patients and staff entering the clinic, finding it to be an excessive encroachment on the rights of anti-abortion protesters.

Across the country, other cases are working their way to the Supreme Court on sweeping new state regulations known as TRAP laws, says Priscilla Smith, director and senior fellow of the Program for the Study of Reproductive Justice, Information Society Project at Yale Law School in New Haven, Connecticut.

TRAP laws, or Targeted Regulation of Abortion Providers, drop multiple mandates on clinics, regulating everything from the width of hallways to the type of air filtration or forcing clinics to rebuild as ambulatory surgical centers. Smith says other laws require doctors who provide abortions to secure admitting privileges at a nearby hospital, although the hospitals often limit admitting privileges to doctors who will bring large numbers of patients. A third group of state laws prevents doctors from using the latest protocols for medical abortion—the “abortion pill.”

States passed a record 231 abortion restrictions from 2010 to 2014, according to the Guttmacher Institute, a research and education nonprofit in New York City. In the wake of TRAP laws, dozens of clinics have been forced to close.

Anti-abortion legislators often preface TRAP laws with language declaring that they are meant to protect women’s health. “The courts are battling over how much it matters that the state says they think the regulations serve women’s health versus the courts actually questioning that statement,” Smith explains. “Everyone knows it’s a pretext.”

One TRAP case, most likely on admitting privileges for doctors, will make its way to the Supreme Court, possibly as soon as this fall. “Justice Kennedy is seen as the fifth vote, upholding a right to abortion previability with some kind of restrictions,” Smith says. “The question is: What kind of restrictions will he uphold?”

With a constant anti-abortion pushback, “there is no end in sight,” Smith adds. “Scary—right?”

Suffering Under Strict Voter ID Laws

Many troubling issues reaching the Supreme Court carry an extra punch for women.

Strict voter ID laws appearing across the country undercut women’s access to power, advocates say. “Women should be very concerned. Voting affects everything else,” says Katherine Culliton-González, senior attorney and director of Voter Protection for Advancement Project, a civil rights organization in Washington, D.C., that is seeking Supreme Court review of a strict voter ID law in Wisconsin.

According to the Advancement Project, new strict voter ID laws were passed or proposed in 20 states in 2014. The laws may require voters—even those who have voted for years—to preregister with specific types of identification, such as an original birth certificate, passport, proof of citizenship, or driver’s license. Costs of securing proof mount quickly, sometimes requiring travel to another state, Culliton-González says.

Women who changed their names because of marriage or divorce encounter particular difficulties. “It’s no coincidence that a majority of our witnesses are women,” Culliton-González points out. Thirty-four percent of women do not have the required proof, according to a 2006 study by the Brennan Center for Justice in New York City.

A deluge of new strict voter ID laws followed the 2013 decision in Shelby County v. Holder (570 U.S. ___, 133 S. Ct. 2612). A 5–4 majority smashed foundational pillars of the historic Voting Rights Act of 1965, stating that a portion of the law had served its purpose and was no longer needed. Ginsburg, in a rigorous dissent, wrote that throwing out a law that is working to stop discrimination “is like throwing away your umbrella in a rainstorm because you are not getting wet.”

Culliton-González says the strict voter ID laws represent a “new wave of poll taxes and literacy rights. It’s heartbreaking.”

Proving Housing Discrimination Could Become Harder

On the docket in the current term is a case testing the standards of the Fair Housing Act of 1968. Texas Department of Housing and Community Affairs v. The Inclusive Communities Project (13-1371), argued on January 21 (decision pending), asks a blunt question: Must claimants show intentional bias or may they continue to use evidence of “disparate impact,” a standard that has been in place for more than three decades?

“You think of racial discrimination, but there is also a history of discrimination against families and people with children,” Schwartz says. “If the court says you can’t show it by disparate impact, it will affect the ability of women to live with their families.”

The ACLU filed a brief on behalf of domestic violence survivors. Melling says it argues that a narrowed Fair Housing Act will harm domestic violence victims who rely on the law to protect them from evictions based on an abuser’s violence. “People are worried about that case for sure,” she notes.

Retaining Obamacare Benefits

King v. Burwell (14-114), argued March 4 (decision pending), challenges a section of the Affordable Care Act (ACA). The case tests the validity of federal tax credits—or subsidies—provided to individuals in 37 states that use the federal health care insurance exchange. Based on a restrictive reading of a phrase in the law, challengers to the ACA claim the tax credits apply only to state exchanges and not the federal exchange.

Fifty-five percent of the enrollees affected by these tax credits are women, according to Washington, D.C.–based National Women’s Law Center (NWLC), which calculates that 7 million women are eligible for the subsidies. NWLC reports that a restrictive reading of the law would cause the entire ACA to crumble because tax credits are central to the ACA structure.

Melling says the court is also likely to hear another ACA case on contraceptives—one that arises from litigation by nonprofit religious institutions. The ACA permits an exception for religious nonprofits that refuse to provide birth control coverage, but some institutions object to even the act of opting out. “All they are being asked to file is a piece of paper seeking an exemption,” Melling notes. “If the court ruled against the administration in those cases, it would be deeply troubling.”

Undocumented Parents Await Executive Protection

An executive order signed by President Barack Obama on November 20, 2014, permits undocumented immigrant mothers and fathers to apply for protection from deportation, but a federal court in Texas issued an injunction on February 16 preventing the law from taking effect. Court watchers predict the matter will end up before the Supreme Court, possibly very soon.

The more contested of the two executive orders on hold is the Deferred Action for Parents of Americans and Lawful Permanent Residents, or DAPA. It allows undocumented immigrants who have been in the country for five years and are the parents of children who are citizens or have green cards to apply for work permits and, if they pass background checks and pay a fee, avoid deportation for three years at a time—the “deferred action” in the title. More than 4 million people are believed to qualify under DAPA, and if the applications follow the pattern of an earlier deferred action program, a majority will be women.

“It’s a concern for women. Many women are undocumented—a great majority are Latino, but also Africans and Asians. [Deportation] hurts the very fabric of society,” Culliton-González says. “I’m keeping my eye on that one.”

Major Decisions Pending on Same-Sex Marriage

The case that offers a little hope for gender-minded litigators is Obergefell v. Hodges (14-556), a same-sex marriage case from Ohio that is being heard on the 2015 spring docket in combination with cases from Tennessee, Michigan, and Kentucky.

The high court is considering whether the Fourteenth Amendment requires states to issue same-sex marriage licenses—only 13 do not at this point. A second question is whether the states must recognize same-sex marriages that are lawfully performed in another state.

In a 2014 analysis by the Pew Research Center, based in Washington, D.C., lesbian couples accounted for three-fifths of the same-sex marriages identified by gender.

“This court is better on individual rights outside the workplace,” says Grossman, who filed an amicus brief supporting the recognition of same-sex marriages. “Kennedy is the one who matters. He’s been the architect for the modern recognition of gay rights.”

In 2013, Kennedy joined the moderates and wrote the decision in United States v. Windsor (570 U.S. __, 133 S. Ct. 2675), voiding the section of the federal Defense of Marriage Act (DOMA) that had prevented federal recognition of same-sex marriages. The opinion includes powerful language about dignity, liberty, and constitutionally protected moral and sexual choices.

“Nothing is done until it’s done, but we’re remarkably optimistic,” Melling says. “The time has come, and discrimination is unconstitutional.”

Through the Looking Glass

But women’s rights litigators also see a long road ahead. “I’ll never be out of a job,” Melling notes.

The court, Schwartz says, “is going in a direction of pre–New Deal, where the government cannot interfere in the economy. This is of great concern to women.

“What worries me most is what happens when Justice Ginsburg and Justice Breyer leave the court,” she adds. “If they are replaced by justices who cut it to the right, you could very easily get to a place where we have a reactionary Supreme Court. What we have now could look very good.”

Cynthia L. Cooper

Cynthia L. Cooper is an independent journalist in New York City and former practicing lawyer.