Law Commons^™

Labor Pains: The Inadequacies Of Current Federal Pregnancy Laws And The Alternative Routes To Accommodation, Sara Alexander

Mississippi College Law Review

Although many women are able to work through their pregnancies without employer accommodations, some pregnant workers who require accommodations "are forced out of their jobs unnecessarily when minor adjustments would enable them to keep working." In 2003, a hardware assembler in Ohio was terminated after her doctor limited her weight-lifting to twenty pounds and ordered that she work no more than eight hours at a time. In 2009, a retail worker in Kansas was fired because she needed to keep a water bottle with her in order to stay hydrated and prevent bladder infections. In 2011, an activity director at …

Exploring The African Regional Human Rights Standards As The Basis For An Enabling Environment For Self-Managed Abortion, Lucia Berro Pizzarossa, Michelle Maziwisa, Ebenezer Durojaye

Washington and Lee Journal of Civil Rights and Social Justice

Self-managed abortion holds great promise to save lives and promote reproductive autonomy, particularly in Africa. Indeed, the African region records very high numbers of unsafe abortions, and the burden of abortion-related mortality is the highest globally. Abortion remains generally criminalized in violation of numerous internationally and regionally recognized human rights standards. The advent of abortion medicines and the increased grassroots energy geared towards curbing the harms of unsafe abortion evince medical abortion holds great promise for revolutionizing people’s access to high-quality reproductive care. This study discusses regional human rights frameworks, policy, case law, and a few representative domestic legislative frameworks …

Pregnant Workers Fairness Acts: Advancing A Progressive Policy In Both Red And Blue America, Deborah Widiss

Articles by Maurer Faculty

Pregnant workers often need small changes—such as permission to sit on a stool or to avoid heavy lifting—to stay on the job safely through a pregnancy. In the past decade, twenty-five states have passed laws that guarantee pregnant employees a right to reasonable accommodations at work. Despite the stark partisan divide in contemporary America, the laws have passed in both Republican- and Democratic-controlled states. This Essay offers the first detailed case study of this remarkably effective campaign, and it shows how it laid the groundwork for analogous federal legislation, passed in December 2022, that ensures workers across the country will …

Birthing Alone, Elizabeth Kukura

Washington and Lee Law Review

Throughout the COVID-19 pandemic, hospitals implemented restrictive visitor policies that have prevented many pregnant people from giving birth with their chosen support people. For some, this meant foregoing labor and delivery support by a birth doula, someone who serves in a nonclinical role and provides emotional, physical, and informational support to birthing people. Given that continuous labor support such as the care provided by doulas is associated with fewer cesareans and other interventions, less need for pain medication, and shorter labors, the promotion of doula care is a promising strategy to ease the maternal health crisis and, in particular, shrink …

Pregnancy And The Carceral State, Khiara M. Bridges

Michigan Law Review

A Review of Policing the Womb: Invisible Women and the Criminalization of Motherhood. by Michele Goodwin.

The Scales Of Reproductive Justice: Casey’S Failure To Rebalance Liberty Interests In The Racially Disparate State Of Maternal Medicine, Mallori D. Thompson

Michigan Journal of Race and Law

Despite the maternal medicine crisis in the U.S., especially for Black women, legislatures are challenging constitutional abortion doctrine and forcing women to interact with a system that may cost them their lives. This Article proposes that because of abysmal maternal mortality rates and the arbitrary nature of most abortion restrictions, the right to choose an abortion is embedded in our Fourteenth Amendment right to not be arbitrarily deprived of life by the State. This Article is a call to abortion advocates to begin submitting state maternal mortality data when challenging abortion restrictions. The call for attention to life was central …

Navigating Surrogacy Law In The Non-United States: Why All States Should Adopt A Uniform Surrogacy Statute, Stephanie Canner

Journal of Civil Rights and Economic Development

(Excerpt)

“My water broke; the baby is coming! Come now!” Normally, a woman in labor makes this frantic phone call to her partner, who would immediately drop whatever they were doing to be by her side at the local hospital and be present to welcome their child into the world. However, this scenario is not the reality for many couples across the United States. For example, there is a New York couple who have a different story to tell their daughter about her birth. Brad Hoylman and David Sigal received a phone call a month before their baby’s due date …

Challenges In Bringing Gender Equity Into The Workplace: Addressing Common Concerns Women Have When Deciding To Hold Employers Accountable For Gender Discrimination, Siobhan Klassen

Journal of Race, Gender, and Ethnicity

No abstract provided.

Sexual Exploitation Of Black Women From The Years 1619-2020, Dominique R. Wilson

Journal of Race, Gender, and Ethnicity

No abstract provided.

The Evolution Of Gender Equity From A Marxist And Existentialist Perspective, Alexandria Lopez

Journal of Race, Gender, and Ethnicity

No abstract provided.

Compared To What? Menstruation, Pregnancy, And The Complexities Of Comparison, Emily Gold Waldman

Elisabeth Haub School of Law Faculty Publications

When crafting a sex discrimination argument, finding the right comparison can be crucial. Indeed, comparison-drawing has been a key strategy for advocates challenging the constitutionality of the tampon tax. In their 2016 lawsuit challenging New York’s tampon tax, the plaintiffs alleged that the New York State Department of Taxation and Finance had imposed a “double standard” when deciding which products would be considered tax-free medical items and which would not. Similar arguments were made in the subsequent challenge to Florida's tampon tax. In both cases, the arguments had powerful rhetorical force, helping to effectuate legislative repeal of the tampon taxes …

Is The Right To Abortion Still Specially Protected?, John M. Greabe

Law Faculty Scholarship

[excerpt] Last week, in June Medical Services v. Russo, the Supreme Court heard arguments in a case that once again raises questions about the extent to which the Constitution protects a woman's right to end a pregnancy. But the way in which the court resolves the case is likely to reveal more than just its views on abortion rights.

This column, the first in a series of three, describes the legal and historical path that led to June Medical Services. The next two will explore what the case suggests about, respectively, how the current court will treat constitutional …

The Pregnancy Discrimination Act: Legitimating Discrimination Against Pregnant Women In The Workforce, Judith G. Greenberg

Maine Law Review

The Pregnancy Discrimination Act (PDA) has been effective in making the most egregious and obvious forms of pregnancy discrimination illegal. Unfortunately, the PDA has also acted as a shield behind which employers can hide as they discriminate against their pregnant employees. The result is that the PDA permits discrimination based on the very sort of stereotyping that it was expected to eradicate. There are two dominant stereotypes of pregnant women. Both are inconsistent with the image of a good worker. One stereotype connects pregnant women with the home. In one form or another it says, “Pregnant women are/should be preoccupied …

Workin’ 9:00–5:00 For Nine Months: Assessing Pregnancy Discrimination Laws In Georgia, Kaitlyn Pettet

Georgia State University Law Review

As demonstrated in this Note, there is still a considerable way to go before women are no longer forced to choose between pregnancy and keeping their career. Allegations of pregnancy discrimination in the workplace are also on the rise.

In 1997, 4,000 plaintiffs filed complaints with the Equal Employment Opportunity Commission (EEOC). By 2011, that number rose to 5,800. The EEOC won significant damages in pregnancy discrimination cases, demonstrating a greater tendency towards discrimination in the workplace. Additionally, this rise in claims and awards caught the attention of the nation’s media, placing new emphasis on the treatment of pregnant women …

Roe V. Wade: The Case That Changed Democracy, Adam Lamparello, Cynthia Swann

Tennessee Journal of Race, Gender, & Social Justice

No abstract provided.

Sentencing Pregnant Drug Addicts: Why The Child Endangerment Enhancement Is Not Appropriate, Monica Carusello

Monica B Carusello

No abstract provided.

The Fourth Trimester, Saru M. Matambanadzo

University of Michigan Journal of Law Reform

This Article introduces a new conceptual framework to the legal literature on pregnancy and pregnancy discrimination: the fourth trimester. The concept of a fourth trimester, drawn from maternal nursing and midwifery, refers to the crucial three to six month period after birth when many of the physical, psychological, emotional, and social effects of pregnancy continue. Giving this concept legal relevance extends the scope of pregnancy beyond the narrow period defined by conception, gestation, and birth and acknowledges that pregnancy is a relational process, not an individual event. In the United States, however, antidiscrimination law has failed to acknowledge the demands …

Pregnant Pause: The Exclusion Of Pregnant Women From Clinical Research As Sex Discrimination, Richard M. Weinmeyer

Richard M Weinmeyer

Since the early 1990s, legislative and policy reforms have spurred the inclusion of women of childbearing potential in clinical research overseen by the National Institutes of Health and the U.S. Food and Drug Administration. Pregnant women have received no such help, however, despite the tremendous medical needs of this important demographic. This article argues that the exclusion of pregnant women from biomedical research in the United States constitutes sex discrimination as a matter of public policy given the interpretation of existing regulations governing human subjects protections. The current regulations that are in place guiding research on human subjects treat pregnant …

Justice Stevens And The Emerging Law Of Sex Discrimination , John P. Wagner

Pepperdine Law Review

No abstract provided.

Medical Evidence In Cases Of Intrauterine Drug And Alcohol Exposure , Judith Larsen, Robert M. Horowitz, Ira J. Chasnoff

Pepperdine Law Review

No abstract provided.

Abandoning Women To Their Rights: What Happens When Feminist Jurisprudence Ignores Birthing Rights, Rebecca A. Spence

Student Articles and Papers

The goals of the Article are twofold. First, this Article will demonstrate that while birthing rights issues have been familiar areas of concern for feminist scholarship on women's rights to privacy and equality, neglecting to integrate this work into the law school classroom fails to promote effective legal advocacy for pregnant women. The violation of women's rights during childbirth is a more common problem than reported legal opinions indicate, and few lawyers are prepared to protect clients prospectively or to vindicate women's rights post-childbirth.

Gender, Family, And Work, Marcia L. Mccormick

All Faculty Scholarship

The country has prohibited sex discrimination since the 1960’s, but society continues to view women and men differently because women give birth, breastfeed, and are traditional caregivers. This article takes a historical look at court decisions and legislative efforts to address equality where men and women are not similarly situated and also explores recent developments and current debates, such as caregiver discrimination, lactation rooms and breaks, and the Affordable Care Act’s contraceptive mandate. Despite the abundance of legislation and court decisions over the past forty years, much progress still needs to be made.

Employment Discrimination - In Vitro Fertilization And The Pregnancy Discrimination Act Of 1978: How Far Can The Courts Expand The Coverage Of The Pda To Protect Reproductive Technology, Justin A. Hinton

University of Arkansas at Little Rock Law Review

No abstract provided.

Body And Soul: Equality, Pregnancy, And The Unitary Right To Abortion, Jennifer S. Hendricks

Publications

This Article explores equality-based arguments for abortion rights, revealing both their necessity and their pitfalls. It first uses the narrowness of the "health exception" to abortion regulations to demonstrate why equality arguments are needed--namely because our legal tradition's conception of liberty is based on male experience, no theory of basic human rights grounded in women's reproductive experiences has developed. Next, however, the Article shows that equality arguments, although necessary, can undermine women's reproductive freedom by requiring that pregnancy and abortion be analogized to male experiences. As a result, equality arguments focus on either the bodily or the social aspect of …

Punishing Pregnant Drug-Using Women: Defying Law, Medicine, And Common Sense, Jeanne M. Flavin Phd, Lynn M. Paltrow Jd

Jeanne M Flavin

The arrests, detentions, prosecutions, and other legal actions taken against drug-dependent pregnant women distract attention from significant social problems, such as our lack of universal health care, the dearth of policies to support pregnant and parenting women, the absence of social supports for children, and the overall failure of the drug war. The attempts to “protect the fetus” undertaken through the criminal justice system (as well as in family and drug courts) actually undermine maternal and fetal health and discourage efforts to identify and implement effective strategies for addressing the needs of pregnant drug users and their families. In this …

Pregnant Employees, Working Mothers And The Workplace - Legislation, Social Change And Where We Are Today , Thomas H. Barnard, Adrienne L. Rapp

Journal of Law and Health

Accordingly, the focus of this Article is on the legal and social evolution resulting from the Civil Rights Act's prohibition of sex-based discrimination- and, in particular, pregnancy-related discrimination - in the workplace. Section II of this Article details the reluctance with which courts and employers initially extended workplace rights to women. Sections III and IV discuss Title VII's prohibition against "sex" discrimination and initial court hesitation to interpret that prohibition to include employees discriminated against on the basis of pregnancy. Sections V and VI provide an overview of federal and Ohio law granting pregnancy-related rights to women, including the PDA, …

Making Pregnancy Work: Overcoming The Pregnancy Discrimination Act's Capacity-Based Model, Joanna L. Grossman, Gillian Thomas

Faculty Journal Articles and Book Chapters

This article considers the gaps and obstacles in current law faced by the pregnant woman whose job duties may conflict with pregnancy's physical effects. While there is no inherent conflict between pregnancy and work, women in physically strenuous or hazardous occupations, from nursing to law enforcement, routinely confront situations in which they are physically unable to perform aspects of their job or, though physically able, they seek to avoid certain tasks or situations because of the potential risks to maternal or fetal health. The Pregnancy Discrimination Act of 1978 (PDA) broadly protects against "pregnancy discrimination," but it provides absolute rights …

The Heart Of The Game: Putting Race And Educational Equity At The Center Of Title Ix, Verna L. Williams

Faculty Articles and Other Publications

This article examines how race and educational equity issues shape women's sports experiences.

The Invisible Pregnant Athlete And The Promise Of Title Ix, Deborah Brake

Articles

The question of how law should respond to women who become pregnant, and whether to specially accommodate pregnancy or analogize it to other conditions, features prominently in virtually every area of sex equality law. In debates over women's equality in the workplace, for example, it has been the defining issue for the development of and debate over various models of equality in feminist legal theory. Until recently, however, the issue has been all but absent in debates and discussion about Title IX and its promise of sex equality in sports. This changed suddenly in 2007, when ESPN televised a program …

"Has The Millennium Yet Dawned?": A History Of Attitudes Toward Pregnant Workers In America, Courtni E. Molnar

Michigan Journal of Gender & Law

This Article will focus on what might be considered the "prehistory" of the PDA in an attempt to shed new light on the equality/difference debate. Beginning as early as the nineteenth century, pregnant workers have been forced into either the equality approach or the difference approach depending mostly on race and class. This Article will show that, at times, both approaches restrained the autonomy of women and even caused harm to individual women and society by contributing to the development of the stereotypes and social attitudes that continue to permit pregnancy discrimination today.