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The decisions the federal courts make have a real impact on our lives every day. The courts have protected students from sexual harassment in schools, established the right to use contraceptives, helped women make inroads to police departments and fire stations around the country, and given girls equal opportunity to participate in educational programs. And many of these key legal protections upon which women have relied for many years, are gravely at risk – hanging in the balance of power on the federal courts.
The judges who sit on our federal courts will likely have a tremendous impact on women’s legal rights for decades to come.
The constitutional right to privacy protects many aspects of Americans’ daily lives, including decisions involving whether to bear children, the ability to keep medical records private, living with extended family members, and having consensual adult sexual relations.
The Supreme Court has repeatedly affirmed the existence of a constitutional right to privacy in the Fourteenth Amendment, including in two key reproductive rights cases: Griswold v. Connecticut (1965), involving access to contraception and Roe v. Wade (1973), involving access to abortion.
The Equal Protection Clause of the Fourteenth Amendment to the Constitution provides that "no state shall ... deny to any person within its jurisdiction the equal protection of the laws." Since 1973, the Supreme Court has held that a law or government policy that discriminates on the basis of sex cannot be upheld unless it can withstand heightened judicial scrutiny. That is, the government must offer an “exceedingly persuasive justification” for the law.
Before this standard was applied, no government-sponsored sex discrimination was found to be illegal, no matter how harmful and no matter how much it was based on outmoded stereotypes. But under the heightened scrutiny standard, the Court has struck down numerous laws that discriminate on the basis of sex, including a law that provided welfare benefits to children with unemployed fathers, but not those with unemployed mothers; a state statute that made a husband the “head and master” over property owned jointly with his wife; and state university policies that denied admission to women on the grounds that they were not “tough” enough to succeed at the school’s demanding curriculum.
Congress has passed a number of laws that protect against sex discrimination, including at work and at school. These include Title IX, the landmark law that bars sex discrimination in educational institutions and programs that receive federal funds, and Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination on the basis of sex, race, national origin, or religion. Other laws protect against discrimination on the basis of age or disability in the workplace. These laws have been critical in breaking down barriers for women and girls in many facets of life.
The Supreme Court has held that affirmative action in our nation’s educational institutions and workplaces is permissible, principally under the Fourteenth Amendment to the Constitution and under Title VII. Affirmative action programs have played a key role in opening up opportunities for women and minorities in employment, education, and other arenas.
Congress has the power to pass laws under the Commerce Clause and the Fourteenth Amendment (and other constitutional provisions) to protect public health, safety, and welfare in a wide range of areas, including discrimination, family leave, clean air and water, and safe access to health care clinics. The Supreme Court is the final judge of whether federal statutes exceeded Congress’ authority — and hopefully, in the near future health care reform.
To find out more about the legal issues of critical importance to women, judicial, executive branch nominations, and Supreme Court and lower court decisions that affect women's rights, visit our website. And stay tuned to NWLC's blog for daily observations and commentary.
