Womenstake, NWLC's Blog

Part 3: The Court Weakened a Standard of Abortion Law
by Gretchen Borchelt

This entry in the Gonzales v. Carhart series concerns a technical legal point, but it is crucial.  It’s about the standard courts use when reviewing whether laws limiting access to abortion are constitutional.  As I’ll explain, the Court in Gonzales v. Carhart weakened the standard, which is likely to mean that more restrictions on abortion will be upheld by courts.

First, a little background:  Courts use different standards of review to determine whether government restrictions on constitutional rights are valid.  In a 1992 case, Planned Parenthood of Southeastern Pennsylvania v. Casey, the Court adopted the “undue burden” standard for abortion restrictions.  The Court said if a “state regulation has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion,” it imposes an undue burden and courts must strike it down.  Although this was a weakening of the standard originally adopted by the Court in Roe v. Wade (that was “strict scrutiny,” which essentially presumes restrictions are unconstitutional), the undue burden standard still represented an elevated standard of review.

But in Gonzales v. Carhart, the Court weakened the undue burden standard in two different ways.

by Steph Sterling

We’ve all heard talk about the need to prevent unintended pregnancies.  But for years, Congress has focused on new and creative ways to deny women access to abortions, without getting at the real root of the problem.   

That’s why Congresswoman Nita Lowey and Senator Hillary Clinton recently introduced the Unintended Pregnancy Reduction Act (the “UPRA”).  The bill’s acronym may be uninspired, but the bill itself is an inspired solution to the problem of unintended pregnancies.   

The UPRA would give low-income women across the country access to contraceptive services to help prevent an unintended pregnancy on par with their access to pregnancy-related care if they do become pregnant.  In other words, if a state will pay for a woman’s pregnancy-related care, it would also have to pay for a woman’s access to contraception.  Greater access to contraceptive care is not only something women want and need, it also makes good public health sense.  The Centers for Disease Control even listed family planning as one of the top ten public health achievements of the 20th century.

Great.  Yet another proposal to expand access to health care, you say.  But how do we pay for it?  Here’s the best part: this bill saves money.

by Dina Lassow

Once again, the Supreme Court has delivered a blow to women—this time courtesy of an opinion written by Justice Alito that limits women’s ability to challenge pay discrimination against them.  In Ledbetter v. Goodyear Tire & Rubber Company, Justice Alito, writing for a slim majority in a 5-4 decision, said that Lilly Ledbetter should not have been able to sue to challenge the proven sex-based pay discrimination for which a jury had awarded her damages under Title VII.  She had lost that right because she had not challenged her lower pay soon enough after the discrimination began—even though she continued to be paid less than her male colleagues by escalating amount, with every paycheck she got.

This result is tremendously damaging to women—and, indeed, to all who are subject to discrimination in pay.  It also ignores the realities of the workplace.  Women may not initially know that they are being paid less than men; in fact, some employers bar employees from discussing their paychecks with their colleagues.  Even if women do know and are suspicious of the reasons they are paid less, they may want to try to work it and not to immediately take their employers to court.

The consequences of pay discrimination are profound.