Emily Martin, Vice President and General Counsel

Emily Martin

Emily Martin is Vice President and General Counsel at the National Women's Law Center, where she undertakes cross-cutting projects addressing women's health, economic security, and education and employment opportunities. She also provides in-house legal advice and representation to the Center. Prior to joining the Center, Ms. Martin served as Deputy Director of the Women's Rights Project at the American Civil Liberties Union, where she spearheaded litigation, policy, and public education initiatives to advance the rights of women and girls, with a particular emphasis on the needs of low-income women and women of color. She also served as a law clerk for Senior Judge Wilfred Feinberg of the U.S. Court of Appeals for the Second Circuit and Judge T.S. Ellis, III, of the Eastern District of Virginia and previously worked for the Center as a recipient of the Georgetown Women's Law and Public Policy Fellowship. She has served as Vice President and President of the Fair Housing Justice Center, a non-profit organization in New York City. She is a graduate of the University of Virginia and Yale Law School.

Expert in: Issues Before the Courts, Platform for Progress, Treaty on the Rights of Women, Supreme Court, Voter Education, Women & the Constitution, Unemployment, Employment
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My Take

Decide Now, or Come Back and Do this All Again in a Few Years?

Posted by Emily Martin, Vice President and General Counsel | Posted on: March 26, 2012 at 11:27 am

Today is the first of three days of argument before the Supreme Court on the constitutionality of the health care law. The Court will ease into the case with a discussion not of substance, but timing.

The personal responsibility provision requires individuals (except for those exempt) to have health insurance by 2014 or pay a penalty to the IRS. The Anti-Injunction Act, a nineteenth century law, says that you cannot bring a legal challenge to a tax prior to that tax being paid. So the question up today is whether that law applies to the personal responsibility provision. If so, then the courts don’t have the power to hear the constitutional challenges to the provision until 2015, when the IRS penalties actually come due.

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Tags: Affordable Care Act (ACA), Health Insurance, Issues Before the Courts, Supreme Court, Federal Tax Policy, Supreme Court, Health Care Reform, Health Care & Reproductive Rights, Judges & the Courts | Add new comment

Supreme Court’s FMLA Decision a Setback for Women

Posted by Emily Martin, Vice President and General Counsel | Posted on: March 22, 2012 at 04:26 pm

On Tuesday, by a 5-4 vote, the Supreme Court held that state employees who are denied their Family Medical and Leave Act (FMLA) rights to take time off because of their own serious medical conditions have no meaningful remedy. The facts in Coleman v. Maryland Court of Appeals don’t necessarily suggest that this is a case about sex discrimination and pregnancy discrimination: Daniel Coleman, a man employed by the Maryland Court of Appeals, sought sick leave for a serious medical condition and was terminated—in violation of the FMLA, he claimed. As Justice Ginsburg explained in her powerful dissent, however, whether and how the FMLA protects state employees who need time of because of their own serious medical conditions is in many ways fundamentally an argument about gender and the protections the Constitution provides against sex discrimination. According to five Justices on the Supreme Court, women just lost that argument.

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Tags: Family Medical and Leave Act (FMLA), Issues Before the Courts, Pregnancy, Supreme Court, Supreme Court, Pregnancy, Parenting, and the Workplace, Employment, Judges & the Courts | Add new comment

Bad Back? Take a Break. Pregnant? Take a Hike.

Posted by Emily Martin, Vice President and General Counsel | Posted on: March 05, 2012 at 05:13 pm

The Pregnancy Discrimination Act (PDA) requires that employers treat pregnant employees at least as well as they treat employees “similar in their ability or inability to work”—so Peggy Young, a part-time UPS driver who needed to avoid lifting more than twenty pounds during part of her pregnancy, might have thought that her employer was bound by law to make that accommodation, given that UPS had a policy of giving light duty to various other employees who were physically unable to do their usual job. Under UPS’s policy, employee who had been injured on the job were entitled to light duty, as were employees with a qualifying disability under the Americans with Disabilities Act (ADA), and employees who were injured off the job and failed a Department of Transportation medical exam. But UPS disagreed and forced her to take unpaid leave for the duration of her pregnancy. As a result, she also lost her medical coverage, months prior to the birth of her child. Then, she lost her pregnancy discrimination case, when the district court ruled that UPS could adopt “pregnancy blind” rules that allowed some employees similar to Peggy Young in their ability to work to go on light duty, while blocking Peggy Young from receiving the same accommodation.

The National Women’s Law Center joined the ACLU Women’s Rights Project and others today in a friend-of-the-court brief urging the Fourth Circuit Court of Appeals to take the language of the PDA seriously and reverse the district court. Congress adopted the PDA in 1978, forcefully rejecting Supreme Court decisions that concluded that discrimination on the basis of pregnancy did not constitute unlawful sex discrimination, but rather discrimination between “pregnant and nonpregnant persons.” The PDA states that discrimination on the basis of pregnancy, childbirth, or related medical conditions constitutes sex discrimination and further provides that pregnancy cannot be treated worse than other disabilities that similarly affect an employee’s ability to do the job. In passing the PDA, one of Congress’s targets was employee benefit programs that provided insurance coverage, for example, to cover a host of disabling conditions, but not pregnancy.

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Tags: EEOC, Issues Before the Courts, Pregnancy Discrimination Act, Pregnancy Rights, Employment | 1 comment

Supreme Court Race-Conscious Affirmative Action Case Important for Women Too

Posted by Emily Martin, Vice President and General Counsel | Posted on: February 22, 2012 at 03:25 pm

This blog is cross-posted at ACSBlog.

Yesterday, the Supreme Court agreed to hear Fisher v. University of Texas at Austin, a challenge to the affirmative action plan used by the University of Texas at Austin. Currently, the university allocates over 80 percent of its slots to students who graduate in the top ten percent of their public high school. For the final 20 percent, the university considers many factors, including grades, a personal essay, character, special talents, socio-economic circumstances, and race. As the Fifth Circuit Court of Appeals held last year in upholding the constitutionality of the plan, UT-Austin carefully crafted its plan to comply with the Supreme Court’s 2003 ruling in Grutter v. Bollinger, which held that consideration of race in public university admissions could properly forward the compelling interest in diversity in education.

One of the great promises of public education, at every level, is its potential to create a student body drawn from a wide variety of backgrounds and perspectives, enhancing the educational experience of all students. As the Supreme Court recognized in Grutter, “Numerous studies show that student body diversity promotes learning outcomes, and better prepares students for an increasingly diverse workforce and society, and better prepares them as professionals.”

Racial diversity within schools breaks down stereotypes that feed and perpetuate inequality. This is particularly important for women because many of the most poisonous racial stereotypes are also gender stereotypes—for example, that black women are promiscuous, that Asian women are subservient, or that Latina women are domestics.

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Tags: Affirmative Action, Affirmative Action in Education, Education and Schools, Issues Before the Courts, Supreme Court, Supreme Court, Education & Title IX | 1 comment

Will the Supreme Court Hold State Governments’ Right to Choose Trumps Poor Women’s?

Posted by Emily Martin, Vice President and General Counsel | Posted on: January 13, 2012 at 03:33 pm

The constitutional challenge to the Affordable Care Act’s expansion of Medicaid poses a fundamental question to the Supreme Court: is a state government less able to exercise free choice in the face of the threat of loss of federal assistance than an impoverished pregnant woman whose health is threatened by the continuation of the pregnancy?

In 1976, Cora McRae needed to terminate her pregnancy for medical reasons, but she had very little money. She had health insurance through Medicaid, but under a provision of federal law known as the Hyde Amendment, federal Medicaid funds can not pay for abortions, including medically necessary abortions, though Medicaid covers other medically necessary expenses, including the costs of childbirth. McRae joined with other plaintiffs to challenge this law in court, arguing that by paying for childbirth expenses, but not for medically necessary abortion expenses, the government was unconstitutionally coercing her reproductive decisions and denying her right to choose to end her pregnancy. In 1980, the Supreme Court rejected McRae’s challenge to Medicaid’s failure to fund medically necessary abortions. “Although Congress has opted to subsidize medically necessary services generally, but not certain medically necessary abortions,” the Court wrote, “the fact remains that the Hyde Amendment leaves an indigent woman with at least the same range of choice in deciding whether to obtain a medically necessary abortion as she would have had if Congress had chosen to subsidize no health care costs at all.” In other words, refusing to provide Medicaid coverage for abortions did not represent unconstitutional coercion of a poor woman’s reproductive choices because, according to the Court, it was her poverty that constrained her choices, rather than any barriers the government had placed in her way. That she was poor and might be forced to make certain choices because of her poverty—like going through with a potentially dangerous pregnancy because she could not afford an abortion--wasn’t the government’s fault, the Court held.

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Tags: Abortion, Issues Before the Courts, Medicaid, Reproductive Health & Rights, Reproductive Refusals & Restrictions, Supreme Court, Barriers to Reproductive Care, Supreme Court, Medicaid & Other Public Funding, Health Care & Reproductive Rights | Add new comment