The Supreme Court has officially overturned Roe v. Wade, and as the minority’s dissent notes: “one result of today’s decision is certain: the curtailment of women’s rights, and of their status as free and equal citizens.”
In this context, it should be shocking that Justice Samuel Alito’s opinion barely discusses women.
The language of the opinion makes it absolutely clear—women’s lives do not matter to this court. Women are barely mentioned in Alito’s opinion. Controlling our bodies and ability to live our lives on our own terms is both the point and the outcome of this decision, but it does not merit much analysis. Alito tidily dispatches with the idea that overturning settled precedent to ban abortion would impact women. He states that the regulation of abortion “does not effect an invidious discrimination” against women because women have workplace protections against pregnancy discrimination, women have access to unpaid leave for having a child, women vote in higher numbers than men, and health insurance covers the cost of pregnancy and birth.
That’s it. That’s the entire argument in this earth-shattering opinion related to how it will impact women.
Sixteen pages discuss “quickening” and the historical understandings of when a fetus is “viable” or capable of surviving outside the womb. Ultimately, Alito disregards the relevance of when the fetus is viable to the decision, stating that “If, as Roe held, a State's interest in protecting prenatal life is compelling ‘after viability,’ 410 U.S, at 163, why isn't that interest ‘equally compelling before viability.”’
Here’s the secret—women's lives are not compelling at any point to the State that celebrates this decision. The United States ranks worst in maternal care and maternal mortality amongst ten developed nations, but Justice Alito only addresses this briefly, by pondering why “mortality rates were the only factor that a State could legitimately consider” for limiting abortions in the first trimester. The death of women is not a factor worth review to this Court.
As a lawyer representing pregnant women and mothers who are discriminated against at work every day in the progressive state of New York, and as the mother of a four-year-old who has spent this pandemic wondering why this country wants to punish me for creating its next generation, this opinion makes my body tense with rage. Let’s talk about the real world protections that give Alito, the Supreme Court, and all Republicans in Congress such comfort that women can just duke out their rights at the ballot box in their state (assuming they can access one).
Federal and state laws ban discrimination on the basis of pregnancy and gender. Yes, there are anti-discrimination provisions, but those do not prevent discrimination against women, they just give women some redress if they are discriminated. I say “some” redress because in order to prove discrimination, women have the burden of demonstrating that they were fired because of their pregnancy. That means once a pregnant woman loses her job, she has to not just focus on creating and sustaining human life, but she must also fight for her rights.
Looking for proof that pregnant women are still discriminated against at work? You have to look no further than the currently stalled effort in Congress to pass the Pregnant Workers Fairness Act. This act would guarantee pregnant workers the right to receive reasonable accommodations during pregnancy unless it would cause an undue hardship on the employer. That means pregnant women would be allowed to take breaks, sit rather than stand, carry less, and potentially work from home if it doesn’t pose an “undue burden” to the employer. (If pregnant women’s rights are already so protected, why would this act be necessary, and why is it stalled in the Senate?)
Of course, women continue to be discriminated against after they give birth and are responsible for keeping their child alive. During the first few years of the COVID-19 pandemic, women’s participation in the workforce fell to the lowest level in decades. Women continue to be the primary caregivers for their children, resulting in a decline in their earnings over their career.
The U.S. continues to be the only developed country on earth without paid family leave. The Family Medical Leave Act, the only federal law that provides parents with unpaid “protected” time off for 12 weeks, only applies to 23 percent of workers. Twelve weeks is far less than what experts recommend for women to heal from childbirth and learn how to keep their child alive after birth. Those 12 weeks may also need to be used to cover doctors appointments and other pregnancy-related time off prior to giving birth.
Many states have moved to increase paid family leave, but Justice Alito’s argument that women are just fine being denied abortion because of their legal protections is both laughable and intellectually dishonest. Look no further than the stalled FAMILY Act in Congress, which would expand who is eligible for leave, and provide some payment to mothers who need to take leave.
The costs of medical care associated with pregnancy are covered by insurance or government assistance. Well, yes, the Affordable Care Act (ACA) did ensure that insurance companies can’t deny benefits based on the “pre-existing condition” of pregnancy. Although care is supposed to be covered, pregnant women and those who have recently given birth routinely get billed tens of thousands of dollars for delivery. Access to health insurance also does not protect against women dying during pregnancy and childbirth, especially women of color. In fact, Black mothers’ mortality rates continue to increase. Access to health insurance does not prevent death, does not provide families with compensation when their beloved mother or wife dies due to pregnancy, and does not stop women from receiving huge bills.
Through Dobbs, the court is telling us clearly that women’s lives do not matter. There is a lot of work to do to ensure that women are safe and respected in this country. Now is the time to engage in any and all ways you can.