Supreme Court Will Hear Three Women’s Rights Cases

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Kathy Rodgers of NOW Legal Defense

WASHINGTON, D.C.–Three cases coming before the Supreme Court in the new term that begins Monday will have a significant impact on women’s rights. The court’s nine justices will rule on appeals involving overt sex discrimination in citizenship law, the constitutionality of mandatory drug testing of pregnant women and the rights of state employees under the Americans with Disabilities Act.

“We’re in a difficult and hostile environment,” said Kathy Rodgers, president of the NOW Legal Defense and Education Fund. (NOW Legal Defense funds Women’s Enews.)

“We’re up against not just resistance to expanding or generously interpreting civil rights, but we’re also up against an extraordinary effort to roll back the civil rights gains that we have had over the last two or three decades,” Rodgers added.

Current citizenship law sets different requirements for fathers and mothers seeking to obtain U.S. citizenship for their children. In the case before the court, a Texas father is trying to prevent his adult son from being deported to Vietnam, a country the boy left when he was 6.

“There are few sex-based statutes remaining, but it is very important to eradicate all that do because they continue to perpetuate the stereotypes about men and women and our roles in society,” Rodgers said at a briefing for reporters Thursday.

To confer citizenship upon a child, the mother needs only to have lived in the United States for one year. A father, however, must provide financial support for the child until the child is 18 and must acknowledge paternity under oath before the child turns 18. Courts may also establish the paternity–again before the child is 18.

Differing U.S. rules for fathers and mothers to confer citizenship on children

The child in this case is now an adult. Tuan Ahn Nguyen was born in 1969 in Vietnam to an American man and a Vietnamese woman who never married. Nguyen’s mother abandoned him shortly after birth and he was left in the care of his father, Joseph Boulais.

After the fall of Saigon in 1975, Nguyen came to the United States as a refugee and was raised by his father and a stepmother. He became a permanent resident of the United States, but his father did not take the steps necessary to confirm Nguyen’s U.S. citizenship before the boy turned 18. In 1992, Nguyen, then 23, was convicted of sexual assault and served his sentence. Three years later, the Immigration and Naturalization Service initiated steps to deport him.

NOW Legal Defense, co-counsel in the case, claims that the law is unconstitutional because it places a greater burden on men than on women in determining U.S. citizenship.

“This is a classic case of stereotyping in our society–the idea that nurturing a child is something that women do naturally but men do not,” said Sherry Leiwant, senior staff attorney for NOW Legal Defense.

No date has been set for oral arguments in this case.

In the case involving the mandatory drug testing of pregnant women, ten prenatal patients at the Medical University of South Carolina in Charleston tested positive for cocaine. Nine were arrested for cocaine possession, distribution of cocaine to a minor or child abuse. One avoided arrest by admitting herself to a substance abuse treatment program. In South Carolina, a third-trimester fetus is legally considered a child. All those arrested were African-American; the one permitted to seek treatment was white.

Challenging mandatory drug testing of pregnant women as violations of law and right to privacy

The hospital and city of Charleston defend the testing policy and arrests, saying they are in the public interest in order to protect maternal and fetal health by deterring pregnant women from using cocaine.

However, the women and their attorneys claim that the policy constitutes a search without a search warrant and violates the right to privacy. In addition, women were arrested after they had given birth, too late to prevent any harm to the fetus. Further, the policy was implemented at the only public hospital in Charleston’s predominately African-American community.

The district court and the Fourth Circuit Court of Appeals upheld the policy. Oral arguments before the high court are scheduled for Oct. 4.

The testing policy and arrests could set a dangerous precedent that could affect all pregnant women and could deter them from seeing prenatal care, NOW Legal Defense lawyers argue.

“Under the reasoning of this policy, the state could prosecute pregnant women for almost anything, including alcohol use or smoking if you could say that these activities could harm the fetus,” said Roslyn Powell, NOW Legal Defense staff attorney.

The third case involves two Alabama state employees who filed separate lawsuits claiming discrimination by the state in violation of the Americans with Disabilities Act. One was demoted to a lower-paid position at the University of Alabama at Birmingham’s women’s and infants’ medical clinic after she returned to work following chemotherapy for breast cancer. The other employee, a corrections officer with the Alabama Department of Youth Services, alleged that the department failed to accommodate his asthma condition.

Question: Can disabled individuals sue state employers under federal law protecting the disabled?

The district court ruled in favor of the state, and the Eleventh Circuit Court of Appeals reversed part of the lower court’s ruling. The issue before the Supreme Court is whether individuals can sue state employers under the federal anti-discrimination law that protects the disabled. Oral arguments are scheduled for Oct. 10.

NOW Legal Defense, which filed a friend of the court brief in the case, says the case will provide the court an opportunity to narrow the civil rights of state employees, as they did last year in a case involving age discrimination and state employees.

“While these decisions are couched in the seemingly technical context of the court’s debate about federalism and states’ rights, they have real and practical importance, particularly for the many women and people of color who work for state institutions such as universities and hospitals and may have cause to invoke civil rights laws,” said Julie Goldscheid, senior staff attorney and acting legal director at NOW Legal Defense. More than half of the work force of state employers are women, she added.

Deborah Mesce is a free-lance writer who previously covered Washington and Congress for The Associated Press.

For further information, visit NOW Legal Defense and Education Fund: http://www.nowldef.org/


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