(WOMENSENEWS)–Women have much to fear from the current Supreme Court–and not only the loss of abortion rights.
Let’s put aside for a moment the precarious position of Roe v. Wade. And put aside as well Bush v. Gore, in which the court preempted the election to install a president who closed the White House Office on Women, reinstated the global “gag rule” on abortion and appointed a vehemently anti-choice attorney general. And that is just for starters.
Let’s also put aside some high court decisions restricting various general anti-discrimination laws, such as the one requiring many victims of employment discrimination to go through an arbitration process that denies them their day in court (Circuit City Stores v. Adams). And the one denying court-ordered fees for attorneys who win their cases though a settlement instead of a full trial, making it much harder for any but the most wealthy victims of discrimination to find a lawyer to represent them (Buckhannon v. West Virginia).
And let’s even put aside this year’s losing challenge to one of the few remaining federal laws, outside of the military, that still blatantly discriminate on the basis of sex, which is okay, according to the high court, because of “basic biological differences” between men and women (Nguyen v. INS).
Recent, Dangerous Trend: States’ Rights Trumps Congress’ Will
Let’s focus for the moment on a fairly recent, but very dangerous new trend, something insidious and far tougher to get at than any one Supreme Court ruling in any one year: Acting in the name of the benign and innocuous sounding concept of “federalism,” the five-person conservative majority of the high court–Chief Justice William Rehnquist along with Justices Sandra Day O’Connor, Antonin Scalia, Anthony Kennedy and Clarence Thomas–has in recent years invalidated or eviscerated laws designed to protect the civil rights of women, the disabled, workers over 40 and racial and ethnic minorities.
This year’s major judicial travesty was a case called Garrett v. Alabama. Patricia Garrett, a nurse at a state hospital in Alabama, needed some time off to recuperate following chemotherapy treatments for breast cancer. When she returned she was demoted for losing too much work time. When she tried to sue the state of Alabama for damages under the federal Americans With Disabilities Act, the Supreme Court, by a single vote, prohibited her from doing so, saying states were immune from these federal anti-discrimination laws. It had already made the same ruling in a case in which a state employee claimed discrimination on the basis of age.
Moreover, this same razor-thin majority has in half a dozen years also limited the reach of federal labor laws, as well as weakened gun control laws, environmental regulations and patent and trademark protections. Again, all in the name of a states’ rights philosophy innocently called federalism.
By overruling the Congress’ explicit intent to protect the nation’s people from sex-based violence, discrimination based on age or disability, unregulated gun possession, destruction of the environment and state-sponsored infringement of their personal creativity, the justices are telling us that our elected federal representatives, as a body, are incapable of determining what are national problems needing federal solutions.
High Court’s Federalism Philosophy Threatens Protections for Women
This trend threatens women in particular. In a case decided just last year, the Supreme Court invalidated the most important part of the Violence Against Women Act, on so-called federalism grounds. The anti-violence law allowed women to bring a civil rights suit in federal court if they had suffered an attack, such as rape or domestic violence, motivated by gender bias. Congress held four years of extensive hearings and found that gender-motivated violence had a major impact on the national economy, especially on women’s ability to travel, earn a living and obtain an education, thus affecting interstate commerce.
Dismissing this evidence, a 5-4 majority of the Supreme Court reasoned, “The Constitution requires a distinction between what is truly national and what is truly local.” In other words, the Court held, in effect, that Congress had no business “making a federal case” out of violence against women.
This decision bars women from the federal courthouse even if their local jurisdictions fail to protect their right to physical safety, and this is but one example of what women have to fear from federalism.
Also under threat are other sex discrimination laws such as Title IX, which has done so much to advance the rights of women in education and athletics, the Equal Pay Act and the Family Medical Leave Act, which gives some degree of job protection to workers who need to take time off to care for newborn or newly adopted children and for severely ill dependents. These laws are being challenged in courts all over the country on the grounds that Congress overstepped its authority under one of these new federalism theories and related concepts included in recent pronouncements by the Supreme Court.
Slowly but surely, we are being stripped of our hard-won civil rights, in the quaint, even comforting name of “federalism.” This philosophy of a return to states’ rights and the undermining of the democratically elected branches should strike fear in our hearts. Last week we celebrated the Declaration of Independence in which the Founding Fathers observed that “all men are created equal.” Let’s pray that we are not headed back to a time when that was understood to mean only men.
Isabelle Katz Pinzler is special counsel and director of the Project on Federalism for NOW Legal Defense and Education Fund. (Women’s Enews is a project of NOW Legal Defense.) She also served as acting Assistant Attorney General for Civil Rights during the Clinton Administration.