Womenstake, NWLC's Blog

Part 5: It’s Not Just What the Court Says, It’s How the Court Says It
by Gretchen Borchelt

As if all of the other parts of Gonzales v. Carhart I’ve described so far aren’t bad enough, there’s also the troubling language used by the Court.  It shows a Court contemptuous of a woman’s right to make decisions about abortion, and indicates that Roe v. Wade is not secure.

by Dina Lassow

As we’ve previously discussed, on May 29, 2007, the Supreme Court issued a decision that severely weakens remedies for employees who have faced pay discrimination.  The case, Ledbetter v. Goodyear Tire and Rubber Co., was decided 5-4, with Justice Alito writing the decision.  Justice Ginsburg took the unusual step of announcing her strong dissent in the courtroom.

Lilly Ledbetter, one of the very few women supervisors at the Goodyear plant in Gadsden, Alabama, had faced sexual harassment at the plant, and her boss had told her that he didn’t think a woman should be working in a tire plant.  She suspected that she was getting fewer and lower pay raises than the male supervisors.  But, Goodyear did not allow its employees to discuss their pay, and Ms. Ledbetter had no proof until she received an anonymous note with the salaries of three of the male managers.  Then she filed a complaint with the EEOC.  Her case went to trial, and the jury awarded her backpay, about $4,700 for mental anguish and over $3 million in punitive damages.  Because of limits on damages in Title VII, the court had to cut her damages to about $360,000.  But, the Supreme Court took even those damages away, holding that she had filed her case too long after the company unlawfully decided to pay her less—even though Ledbetter continued to receive discriminatorily low paychecks because of the earlier decisions.

The good news is that the Supreme Court’s decision was based on its interpretation of Title VII—meaning that Congress can tell the Court that it got it wrong.

Part 4: The Court Tells Vulnerable Women to Go to Court for the Safest Healthcare
by Gretchen Borchelt

Like last week’s installment, this week’s focuses on a technical legal point that will have a huge impact on real women’s lives.  The Supreme Court in Gonzales v. Carhart said that if an individual woman wants to access the safest healthcare for her, she will have to go to court in order to get it. 

The Court did this by changing its mind on whether women and their doctors can bring “facial challenges” to abortion restrictions.  Facial challenges are those that say an entire law is unconstitutional on its face, and prevent the law from going into effect before anyone is injured by it.  In Gonzales v. Carhart, the Court said that the lawsuits brought against the federal ban because of a lack of health exception should not have proceeded as facial challenges.  Instead, the Court said that challenges to the law should have been “as-applied” challenges.  As-applied challenges require individuals to go to court to stop the law from being applied to them because of their particular circumstances. 

In this case, that means that vulnerable women – women with health conditions ranging from placental cancer to blood disorders and women with fetuses who have grave fetal abnormalities – have to find a lawyer and go to court if they want access to the procedure that may be the safest for them.  This puts individual women in a terrible position.  As Justice Ginsburg said in her dissent, a “woman ‘suffer[ing] from medical complications’ needs access to the medical procedure at once and cannot wait for the judicial process to unfold.” 

This is a huge change from prior practice.