Roundup: Supreme Court to Consider Pregnancy Discrimination, Karen Rayne Reviews “Zack and Miri Make a Porno”

Emily Douglas

Supreme Court to consider "second generation of pregnancy discrimination"; Karen Rayne reviews "Zack and Miri Make a Porno"; Texas high school students to take "paternity awareness" classes; California woman pleads guilty to practicing medicine without a license.

Supreme Court to Consider "Second Generation of Pregnancy Discrimination"

The Pregnancy Discrimination Act, which treats discrimination on the basis of pregnancy and childbirth as unlawful sex discrimination, has been law for 30 years.  Now, the Supreme Court will decide whether workers who were pregnant prior to passage of the PDA are still protected by it when retiring, reports the National Law Journal.  The four women bringing the case all took maternity leave, then classified "personal leave," before the PDA was enacted, meaning their retirement is calculated with fewer "service credits" than had their maternity leave be considered disability leave.  The Supreme Court decision could affect 15,000 women.

Still No Link Between Mental Illness and Abortion

News that a comprehensive Johns Hopkins examination found no credible study had ever demonstrated a link between long-term mental health effects and abortion has been widely picked up across mainstream news outlets, but columnists such as Bonnie Erbe on US News and World Report cheered the news, too:

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First, there was the widely discredited
claim that abortion raised breast cancer rates. Then, so-called
pro-lifers avowed that women who had abortions became profoundly
depressed afterwards. The list of myths propagated by right-wing
abortion foes goes on and on. Today, yet another claim fell prey to scientific accuracy.

Karen Rayne Reviews "Zack and Miri Make a Porno"

Dr. Karen Rayne, who runs the Adolescent Sexuality blog, has a lively and insightful review of "Zack and Miri Make a Porno" up on her site. Karen calls the movie "cute and funny" but identifies two major flaws: the film doesn’t portray any condom use, and it suggests an overly simplified, unrealistic view of sexual pleasure.  Writes Karen,

The integration of condoms into sex/fucking/lovemaking scenes in movies
has the potential to have a huge impact on teenagers’ and young adults’
safe sex practices.  After all, our society has given sexuality
education of our young people over to the movies and media, since the
education system and most parents aren’t willing or able to talk about
it…

And when will this constant barrage of social weight stop supporting
the ideas that (1) just because you’re in love, the sex will be
fabulous, and (2) vaginal intercourse alone should be orgasm-producing
for women?

 

Texas High School Students to Take "Paternity Awareness" Classes

In Texas, high school students will learn all about child support, "alleged" and "presumed" paternity, but won’t necessarily get comprehensive sexuality education around pregnancy prevention. Reports MySanAntonio

Starting this school year, health classes at all Texas public high
schools must teach a curriculum called Parenting and Paternity
Awareness, or p.a.-p.a., as required by a 2007 state law.

As part of the curriculum, students learn how to calculate child
support payments, as well as the costs associated with having and
raising a baby. They are also introduced to legal lingo, such as
“alleged” father and “presumed” father and are taught the process for
establishing paternity.

Says Dr. Janet Realini, president of Healthy Futures, a nonprofit focused
on preventing teen and unplanned pregnancy:

Children who have strong relationships, positive role
models and a sense of belonging in their community are less likely to
engage in risky behaviors, Realini said.

P.a.p.a. “gives lots of logical reasons, in terms of the
consequences of being a young parent, for young people to wait, but I
think what we need to understand is that it’s not all about logic,”
Realini said. “Human behavior is very complex and young people are
making decisions based on what they see in their lives, and what they
expect for their future, as well as the information that they have.”

 

California Woman Pleads Guilty to Practicing Medicine without a License

Bertha Pinedo Bugarin, reproductive health care clinic operator in San Diego, has plead guilty to nine counts of practicing medicine without a license, the LA Times reports

Supreme Court of Nepal Calls on Government to Make Legal Abortion a Reality

Ramona Vijeyarasa

On May 20, Nepal's Supreme Court ordered the Nepalese government to enact a comprehensive abortion law to guarantee that abortion is accessible to women, not just legal.

The thought of a woman dying
or being forced to carry an unwanted pregnancy because a Government
denies her legal access to a safe abortion is deplorable. Yet, it is
equally unacceptable for a Government to hide behind what appears to
be an acceptable law that in reality does little to guarantee a women’s
right to choose or to put her health and life first.

On May 20, Nepal’s Supreme
Court ordered the Nepalese government to enact a comprehensive abortion
law to guarantee that women have access to safe and affordable abortion
services.  Abortion has been legal in Nepal since 1992 when the
government introduced an amendment to the National
Code
to allow a
woman to have an abortion within the first 12 weeks of pregnancy, up
to 18 weeks if the pregnancy is the result of rape or incest, or at
any time if it is believed that the pregnancy will affect her physical
and mental health. The amendment represented not only a step towards
improving the health of Nepalese women but also what an untenable situation
the former law created, with one-fifth of women in prison in Nepal at
the time of the amendment incarcerated for having had an illegal abortion.

Since the introduction of the
new law, however, numerous barriers have continued to prevent women
from accessing safe and legal abortions, the most obvious being the
lack of service providers but also a lack of awareness among women that
abortion is legal. Familial and religious values have frequently deterred
women from seeking an abortion while stigma persisted, heightened by
number of women who served prison time under the previous law. The Supreme
Court’s new decision requires the government to set up a fund to cover
the cost of abortion for poor and rural women and invest enough resources
to meet the demand for abortion services. The Supreme Court has also
instructed the government to raise awareness about legal and safe abortion
and take steps to eliminate the stigma surrounding the practice.

The petitioner in the case
was Lakshmi Dhikta, a woman from a poor household in the rural western
region of Nepal who had been denied an abortion simply because she could
not pay the fee for the procedure and was forced to give birth to her
sixth child. The case was filed back in 2007 by the Nepalese NGO, Forum for
Women, Law, and Development

supported by the Center
for Reproductive Rights (CRR)

in New York. According to the CRR’s regional manager and legal adviser
for Asia, Melissa Upreti, the decision was not unexpected but rather
a reflection of the maturity, sensitivity and progressive attitude of
the current court. According to Upreti, the Nepalese Supreme Court has
issued a number of gender sensitive decisions over the years, including
ordering the government to review
the provisions for punishing marital rape
,
which were considered too lenient. In August 2007, the Court also rejected
a writ that challenged the new abortion provisions
on the basis that they discriminated against men for allowing a woman
to terminate a pregnancy without the husband’s consent as well as
criminalizing marital rape. Upreti also credits the consistent efforts
of activists over the years to sensitize judges about gender equality
and human rights, with one of the judges who handled the case having
been involved in a CRR training on reproductive rights litigation back
in 2006. 

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In one of my previous posts I have discussed the value of
the Government of Nepal’s Interim
Constitution
adopted
in January 2007 which explicitly recognizes that "every woman
shall have the right to reproductive health and other reproductive matters"

as a fundamental right. Upreti believes that this recognition
of reproductive rights as fundamental provided a strong legal basis
for the Court to recognize the claims made in this case. This is not
to suggest that the case was an easy win, in light of Nepal’s conflict-ridden
history. Upreti also notes that "the case is in large part premised
on a woman’s autonomy, a concept that does not exist in the patriarchal
framework that has dominated Nepalese society for centuries."

The decision comes after a
recent announcement by the Ministry of Health and Department of Health
Services of a plan to bring medical abortion to the primary
health-care and community level throughout Nepal, particularly poor,
underserved women, especially those living in difficult-to-reach rural
communities. The government will train midlevel providers (such as nurse
midwives), as well as doctors, to counsel women and provide medical
abortion.

There had been a number of
efforts over the years by local and international NGOs to raise awareness
about the legality of abortion and help address the ingrained fears
and shame that were standing between women and safe abortion. Path, for example, have been working to
create "dialogue groups" allowing groups of women to have discussions
about issue such as unwanted pregnancy, choice, AIDS prevention and
gender inequality. Ipas
Nepal
also began
training health-care providers in comprehensive abortion care in 2004,
as a result of which, nearly 500 providers, including nurses, have been
trained and 74 out of 75 districts have at least one trained provider.
However, despite such efforts many poor, rural women still cannot access
safe abortion services, making this Supreme Court decision truly monumental.

A significant portion of Nepal’s
maternal deaths is attributable to unsafe abortion, heightened by persistent
poverty, low rates of contraceptive use and a high percentage of deliveries
occurring without a skilled birth attendant. With one of the highest
maternal mortality rates in Asia, 830
deaths per 100,000 live births

in 2005, this Supreme Court decision reflects a much-needed push for
the government to account to its people in guaranteeing the right to
life and the highest attainable standard of health. Now civil society
groups must maintain this momentum and monitor the decision’s implementation,
working with the government to continue to make access to abortion a
reality. 

Supreme Court Decision Pretends Pregnancy Discrimination Doesn’t Harm Women

Kay Steiger

In AT&T vs. Hulteen, the Supreme Court reverted to reasoning from an earlier ruling that discrimination against pregnant women doesn't count as discrimination against women.

Few things underscore the Supreme Court’s lack of diversity
more than the recent ruling in a pregnancy discrimination case, AT&T Corp. v. Hulteen. The case
examined the pension payments for a number of former female employees of AT&T
who had taken maternity leave before passage of the Pregnancy Discrimination
Act, which clarified that under Title VII of the Civil Rights Act pregnancy
discrimination counted as sex discrimination. Now, AT&T is defining unpaid
maternity of these employees as personal leave from the company.  And the court has now ruled that such personal
leave doesn’t and shouldn’t count toward these women’s pensions.  Justice David Souter, who recently announced
his retirement from the court and has generally been thought of as favorable
toward women’s rights, wrote the opinion.

"This was not one of Justice Souter’s finest moments," said
Harper Jean Tobin, a staff attorney for the Herbert Semmel Federal Rights
Project of the National Senior Citizens Law Center and has written about the
case for the American Constitution Society’s blog. "Hulteen is a bad decision and has a significant impact on a large
number of workers. At the same time it’s a narrow decision." Tobin estimates
that the ruling only affects the roughly 15,000 women who worked at AT&T and
took maternity leave before the PDA was put into place.

But Marcia McCormick, a law professor at the Cumberland
School of Law and a contributor to Workplace Prof Blog, estimates this ruling
might have a more sinister impact on constitutional law. One of the most
disturbing things is that it seems to suggest that pregnancy discrimination is
not sex discrimination. That determination could have vast and reaching impacts
on women in this country.

"I am a little worried about what this is going to do about
constitutional analyses, even beyond potentially the employment context,"
McCormick said. "There are lots of situations in which the government interacts
with women in relation to their pregnancies or deciding not to become
pregnant."

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The Hulteen ruling
reaffirms a long-since disputed view of the Court. After the Civil Rights Act became
law, many lower courts ruled that pregnancy discrimination was a form of sex
discrimination, using the reasoning that only women can become pregnant. But in
1976, the Supreme Court ruled
in the case of General Electric Co. v.
Gilbert
that pregnancy discrimination was not sex discrimination. The
opinion, delivered by Justice William Rehnquist, described General Electric’s
plan "as representing a gender-free assignment of risks in accordance with
normal actuarial techniques. From this perspective the lone exclusion of
pregnancy is not a violation of Title VII insofar as all other disabilities are
mutually covered for both sexes."

It didn’t take long for the public outrage at this ruling to
cause Congress to pass the Pregnancy Discrimination Act and make it clear that
pregnancy discrimination is, in fact, illegal under the Civil Rights Act. The
law stated,
"women affected by pregnancy, childbirth, or related medical conditions shall
be treated the same for all employment-related purposes, including receipt of
benefits under fringe benefit programs, as other persons not so affected but
similar in their ability or inability to work." The PDA said that pregnancy was
no different from other forms of disability, and should be treated as such.

In terms of Hulteen,
the court was primarily concerned with "seniority systems" and that because AT&T
treating pregnancy leave as personal
leave was considered legal at the time, the company is not required to amend its
pension system now.  But, as Justice Ruth
Bader Ginsberg noted in her dissent, "[The plaintiffs] seek pension benefits,
now and in the future, equal to the benefits received by others employed for
the same length of time. The actionable conduct of which they complain is
AT&T’s denial of equal benefits to plaintiffs "in the post-PDA world."

Drexel University College of Law professor David Cohen
agreed with Ginsberg’s take on the case. "What we can say is that an employer
shouldn’t be able to do things now that continue to perpetuate discrimination
based on pregnancy, which is what AT&T is doing. They’re paying pension
based on differential calculations based on pregnancy-current action. It’s not
past action."

The underlying context in this case is that pregnancy
discrimination, like other forms of discrimination cases, are becoming harder
and harder to win. A recent study published in the Harvard Review of Law &
Policy found [PDF] that
"Compared to other plaintiffs, [those who allege employment discrimination]
manage fewer resolutions early in litigation, and so they have to proceed to
trial more often. They win a lower proportion of cases during pretrial and at
trial. Then, more of their successful cases undergo appeal. On appeal, they
have a harder time both in upholding their successes and in reversing adverse
outcomes." Plaintiffs who prevail in employment discrimination cases are becoming
ever scarcer.

The reasons for this are complicated, McCormick said. The
kind of discrimination that people experience today tends not to be overt. It’s
often a subtle form of discrimination in which  employers either don’t disclose their biases
or sometimes even aren’t aware of them. "Some people say that’s not what Title
VII was designed to reach," McCormick said. "I personally argue that people
just don’t agree on what discrimination is anymore. Maybe they never did."

Another high-profile case brought this into light, the Ledbetter v. Goodyear Tire Co. case of 2007.
Arguing that Lilly Ledbetter ought to
have filed her pay discrimination complaint within 180 days of her first
discriminatory paycheck, the court refused to grant Lilly Ledbetter back pay
for her years of sex discrimination. It was a cause around which women’s rights
advocates and women generally rallied, and which resulted in passage of the
Lilly Ledbetter Fair Pay Act earlier this year.  The Hulteen
ruling, because it affects a much smaller segment of the population, is
unlikely to evoke such a popular movement for Congress to reverse the decision,
although some feel that they should.

"Congress can step in and rectify this decision too by
passing a law that makes it clear that this kind of pension program based on
differential treatment of pregnancy is unlawful," Drexel University’s Cohen
said. "The administration can put regulations [in place] that are consistent
with statute that make it clear that certain things are unlawful based on sex
discrimination. Other branches of government and state courts and state
governments are going to have to step in because the Supreme Court is not a
sympathetic venue right now."

Cohen points to the fact that the Supreme Court has
consistently been ruling against those that bring forth discrimination cases,
much as in the Ledbetter ruling. It’s
not beside the point to note that the court is composed mostly of white men. In
fact, a recent study
of judges in sex discrimination cases determined that women were 10 percent
more likely to rule in favor of plaintiffs in such cases, regardless of
political ideology. When the Lilly Ledbetter Act was passed in the Senate,
every female senator voted in favor of the law, regardless of political party.

It would seem that President Obama’s indication that he’s in
favor of appointing a female justice to replace Souter is well justified if the
interests of victims of discrimination are to be better protected by the Supreme
Court. Still, there are some that are less optimistic. "The issue is that we
have five justices — Justice Scalia, Thomas, Alito, Kennedy, and Chief Justice
Roberts — who are relatively young for Supreme Court justices, they’re very
conservative, they’re not at all sympathetic to women," Cohen said. "Getting
newer, more progressive, younger justices would certainly be good long-term
because they’ll be on the court a lot longer, but it’s not until the five
conservative justices are changed that we’re going to see any improvement."