Letters: Real effect of overruling Roe
Real effect of overruling Roe
I was disappointed in the column titled “Blowing Up Roe,” August-September, page 23. It maligned individuals with differing views, disrespected six U.S. Supreme Court justices and used inflammatory language. As attorneys, we are expected to treat each other civilly and not base our judgments on raw emotion.
From our nation’s beginnings, the founders placed a high value on life. The Declaration of Independence pronounced that we have certain unalienable rights, including “life, liberty and the pursuit of happiness.” It stated the role of government is to “secure these rights.” Later, these values were reflected in the civil and criminal law.
Prior to Roe v. Wade, virtually all states protected the lives of unborn children except to preserve the lives of the mothers and in instances of rape or incest. Dobbs v. Jackson Women’s Health Organization traced this 185-year history.
It is a mischaracterization to state that “conservatives” are concerned only with life in the womb and not after birth. For example, pregnancy care centers provide assistance for mothers both before and after the child’s birth; churches provide food and clothing drives; and Safe Haven/Baby Moses laws allow a mother to give up her child without penalty.
Language such as “blowing up Roe” and a “slippery, bloody slope” do not provide the proper legal framework. Courts do not “blow up” anything, but they will overturn precedent when it is incorrectly decided or no longer just.
Dobbs was a thoughtful opinion that provided a detailed discussion of legal history concerning abortion; articulated how the court decides if a right is a fundamental right; addressed the standard for overruling one of its precedents; and provided extensive footnotes.
Dobbs did not end abortion. The court returned the abortion issue to the states, where it historically had been. States appropriately decide medical issues because legislatures can hold hearings, obtain the latest medical information and review advances in medical technology to determine whether the law needs to be updated to reflect medical science.
As the high court stated in Dobbs, Roe did not end the abortion debate. Both liberal and conservative justices have long recognized that it fueled the debate. By returning the issue to the states, the court respected the democratic process. The people through their elected representatives can decide the abortion issue; determine what regulations, if any, should apply; and how to support women and their unborn or born children.
Abortion travel benefits
None of us is surprised that Americans hold widely differing views about the morality of abortion, nor is anyone surprised that employers might consider responding creatively to the U.S. Supreme Court’s Dobbs v. Jackson Women’s Health Organization opinion by modifying employee benefits. (“Law firms aiding staffers to secure abortions in post-Dobbs world see possible risks and rewards,” ABAJournal.com, July 26.) It would be surprising, though, if members of the ABA fail to think like lawyers about what the law actually permits.
May an employer lawfully provide fringe benefits for abortion that it does not provide for nonabortion-related medical needs? Equal Employment Opportunity Commission pregnancy discrimination guidance—issued under the Obama administration—clearly states that Title VII of the Civil Rights Act of 1964 prohibits discrimination against an employee “based on her decision not to have an abortion.” It also states, “If an employer decides to cover the costs of abortion, it must do so in the same manner and to the same degree as it covers other medical conditions.”
There is good reason for this guidance. The employer’s provision of abortion travel expense is being discussed as a humanitarian gift, a protection of civil rights; but in fact, an employer may have perverse incentives to facilitate abortion, since its employees who have abortions may take less leave and may generate lower health care costs than its employees who give birth to children. An employer with its eye on the bottom line would, for the same reasons, incentivize sterilization if it could make that appear benevolent. For the cynical employer, fertility is a bug and not a feature in its female employees. An ostensibly pro-choice position—this time, the abortion travel benefit—can ironically suppress choice and instead coerce a pregnant woman to abort.
Title VII does not permit an employer to give cash awards to employees who abort without also providing the same cash payments to employees who wish to become pregnant, or to maintain a pregnancy to childbirth, or to obtain maternal and/or fetal health care.
Many women who suffer from infertility or miscarriage—and women whose unborn children have serious medical conditions—desire medical care that they cannot obtain without incurring the costs of travel.
Title VII neither requires nor precludes an employer’s provision of abortion coverage. But it does not permit an employer to discriminate on the basis of an employee’s intention to continue rather than to terminate a pregnancy.
And pregnancy discrimination under Title VII is by no means the only issue to which lawyers should be alert. Their employer-clients also should be warned that the Americans with Disabilities Act may require an employer that provides special benefits for abortion to provide equivalent benefits for the health concerns of disabled employees.
Pregnancy, childbirth and abortion are not job-related. In America, employers, like employees, are permitted to hold widely differing views about these issues. But the law requires that employers not discriminate on the basis of the choices that a pregnant employee makes.
Sharon Fast Gustafson