|FEATURES | summer 2005
Five Rights Women Could Lose
While many of us like to assume that our rights will always be secure, the stark reality is that many hard-won protections hang by a thread — and that thread, metaphorically, is attached to the robe of a Supreme Court justice. Here are five rights that, with an ultraconservative Supreme Court, we would stand to lose:
1. Reproductive privacy
The constitutional right to reproductive privacy, embodied in Griswold v. Connecticut (see "Public Triumphs, Private Rights" ) and then expanded in Roe v. Wade, has withstood 30-plus years of attack. By a narrow majority, the Court has upheld this fundamental right and rebuffed numerous efforts to overturn its decisions.
Most recently, in Stenberg v. Carhart (2000), the Court invalidated a state law that criminalized late-term abortion procedures, even when necessary for preserving the health of pregnant women. The state law could also have outlawed the most common abortion procedures used during second-trimester pregnancies.
With the addition of just one anti-choice justice, the Court could overturn not only this decision but Roe v. Wade, and even possibly Griswold.
2. Affirmative action
Affirmative-action programs have been invaluable tools for expanding opportunities for women and minorities, remedying discrimination and bringing much-needed diversity to America’s institutions.
In a series of 5-4 decisions, the most recent being Grutter v. Bollinger (2003), the Court has upheld the use of affirmative action to achieve these goals. The replacement of one justice could effectively bring affirmative-action measures to an end.
3. Protection against gender-based discrimination
Since the 1970s, the Court has made clear that we should look closely at laws treating women and men differently, or excluding women from opportunities and benefits.
In recent years, the Court has teetered between supporting and discouraging gender-based protections. In United States v. Virginia (1996), it struck down a males-only admissions policy that discriminated against women, but in Nguyen v. INS (2001), the Court reinforced gender-based stereotypes by allowing different rules for fathers and mothers when establishing citizenship for children born abroad. The change of one or two justices could resurrect and solidify the Court’s acceptance of harmful gender stereotypes.
4. Family and medical leave
More than 50 million Americans have used the federally mandated unpaid leave granted by the Family and Medical Leave Act (FMLA) to care for a seriously ill family member or spend time with a new baby.
But a crucial 2003 case in which the Court ruled that state employees could challenge their employers for violating their right to FMLA ( Nevada Dept. of Human Resources v. Hibbs ) was decided by just a 6-3 margin. A change of two justices could undermine FMLA protections in the future.
5. Quality health-care services
By a slim 5-4 margin in the 2002 case Rush Prudential HMO Inc. v. Moran, the Court upheld an Illinois law permitting independent review of an HMO’s decision to deny a treatment it didn’t consider “medically necessary.”
The Court agreed that patients have the right to have an independent panel of doctors review an HMO’s decision about medical necessity. Just one other dissenting opinion would cost millions of Americans a key patient protection that helps ensure good medical care.
Adapted with permission from the National Partnership for Women & Families.