Courts undeniably matter to women—for better or worse. Every day, they decide cases involving the right to have an abortion, to access contraception, to obtain affordable health care coverage, to equal protection under the law, and to fair treatment for women on the job. As March is women’s history month, it is an opportune moment to examine some pending and recent court cases that matter to women.
Two significant cases pending before the Supreme Court, Sebelius v. Hobby Lobby and Conestoga Wood Specialties Corp. v. Sebelius, deal with contraceptive coverage under the Affordable Care Act (“ACA”). This month, the Supreme Court heard arguments regarding whether for-profit companies must comply with a portion of the ACA requiring that women receive health insurance coverage for birth control. The employers argue that they have a right under the Religious Freedom Restoration Act and the Free Exercise Clause of the First Amendment to refuse to grant this coverage based on their religious objections to certain forms of birth control. In essence, they claim that corporations have the liberty to impose their religious beliefs on women and their families, denying women access to critical health care coverage and interfering with a woman’s right to make personal health care decisions for herself. Of course, a for-profit corporation is not a “person” capable of exercising religious beliefs, just as a corporation may not exercise other individual and personal rights such as the right against self-incrimination, and the birth control coverage requirement applies to the company, not to the individuals who own it. Further, even if a for-profit corporation could exercise religion, the birth control coverage requirement does not amount to a “substantial burden” on religious exercise—the standard the companies would need to prove—and including birth control in employee health plans furthers compelling government interests in advancing women’s health and equality and is the least restrictive means of so doing. The NWLC filed an amicus brief in support of the contraceptive coverage requirement in both cases.
Of other recent cases, perhaps the most important victories pertain to the Equal Protection Clause and its application to couples in same-sex marriages. Last Term, in United States v.Windsor, the Supreme Court struck down Section 3 of the federal Defense of Marriage Act, which prevented federal recognition of same-sex marriages performed in jurisdictions that authorize them, thus excluding same-sex couples from a vast array of federal benefits and protections. Since Windsor, all lower federal courts examining marriage equality have unanimously found that state laws limiting marriage to different sex couples violate the 14th Amendment. At least one federal court of appeals has found that “heightened scrutiny”—where a law is presumed unconstitutional unless the government can show there is an “exceedingly persuasive justification” for it—applies to discrimination on the basis of sexual orientation. Equal treatment under the law makes a difference to all women, including LGBT women.
The bad news is that several recent Supreme Court decisions give short-shrift to women in the workforce. For example, the Supreme Court this past Term ruled in Vance v. Ball State University that, under Title VII, while employers may be held legally responsible for harassment by an employee’s “supervisor,” this term only includes individuals who have the power to hire and fire employees or take other tangible employment actions, thus excluding immediate or day-to-day supervisors who do not have this authority, even when that supervisor controls the worker’s hours, work assignments, or shifts—control that significantly impacts an employee’s work conditions and that empowers the employer to harass. A bill called the Fair Employment Protection Act (more informally called the Vance fix)was recently introduced to amend federal civil rights laws to ensure that employees have robust protection from harassment by these individuals.
Courts are also dealing with cases implicating women’s reproductive rights beyond the right to contraception. McCullen v. Coakley, another case before the Supreme Court this Term, deals with a Massachusetts law put into place to stop violence and harassment at reproductive health clinics. The plaintiffs argue that the law—which criminalizes “enter[ing] or remain[ing] on a public way or sidewalk” within 35 feet of such a clinic—violates the First Amendment’s free speech guarantee. A case from 2000 sustained a similar law, but the Court may decide to revisit this prior decision. If the Massachusetts law is invalidated, or if the Supreme Court overturns its 2000 decision, it could pose a real risk to the safety of women who go to these clinics for necessary health services, and to the employees who care for them. Finally, other state laws designed to limit women’s access to abortion are being passed and challenged in court at a rapid rate. For example, Arkansas recently banned abortion at 12 weeks of pregnancy, in blatant violation of the U.S. Constitution. Luckily, a federal judge there struck down this provision. However, the Fifth Circuit recently upheld a Texas law that requires abortion doctors to have staff privileges at a nearby hospital—which many hospitals will not grant. The law has already forced Texas clinics to shut their doors completely. The Supreme Court had earlier refused to intervene in the case, but some of the Justices indicated that they expect the issue to come before the Court soon. And in fact, a court decision blocking a similar law in Wisconsin has been appealed to the Supreme Court, potentially giving the Court the opportunity to test the boundaries of Roe v. Wade.
For these reasons, and many more, it is clear that courts matter deeply to women. Our rights and those of our daughters and future generations hang in the balance.