March is Women’s History Month. Yet this March, for the first time in 50 years, those who are pregnant, in many parts of this country, have been stripped of their Constitutionally protected right to make the personal health decision to have an abortion. In Dobbs v. Jackson Women’s Health Organization, the Supreme Court held that the 14th Amendment’s guarantee of liberty does not extend to having an abortion. Further, while those who may become pregnant are overwhelmingly women, the Court further concluded that a ban on abortion does not implicate the Equal Protection Clause. In reaching these conclusions, the Supreme Court used a primarily white, male gaze for its interpretation of what rights are “deeply rooted in this nation’s history and tradition.”
Sadly, the Court is correct that this country’s history and traditions have not protected the liberty or equality of marginalized people. Infamous decisions such as Dred Scott v. Sandford (1857), The Civil Rights Cases (1883), and Plessy v. Ferguson (1896) all enshrined an apartheid system that resulted in violence and economic subjugation of primarily Black people, while decisions like Minor v. Happersett (1875) ensured that women would not be allowed to participate in the political process until 1920. Buck v. Bell (1927) underscored this country’s willingness to strip individuals of their right to become pregnant. Further, decisions such as Lochner v. New York (1905) limited protections for workers, while Muller v. Oregon (1908) perpetuated sexist notions of women’s abilities in the workplace. Finally, revolutionary labor legislation, such as the FLSA, intentionally excluded jobs that were predominantly occupied by Black and Brown people, such as agricultural domestic work. Even when agricultural workers were included in the minimum wage provisions in 1966, they were still excluded from overtime provisions. As Richard Rothstein wrote in his book, The Color of Law, “[W]e cannot understand the income and wealth gap that persists between African Americans and whites without examining governmental policies that purposely kept Black incomes low throughout most of the twentieth century. Once government implemented these policies, economic differences became self-perpetuating.”
The Dobbs decision will result in more individuals being required to carry their pregnancies to term. It is anticipated that the majority of these additional pregnancies will be in locations with the worst maternal health care and borne by those least able to afford it. These pregnancies will also require those who are pregnant and those who care for them to require greater access to family and medical leave. However, even this legal protection is less available to marginalized groups.
The FMLA, with its limited coverage of only employers with greater than 50 employees and employees who have been employed for more than twelve months and for 1250 hours, covers only 56 percent of workers and only 38 percent of low-wage workers—those earning less than $15.00 per hour. Three out of ten workers in this same wage group reported needing to take leave, but not doing so. Across all income categories, 72 percent report not taking leave when needed due to financial concerns.
The limitations on access to leave are most heavily borne by single parents. Twenty percent of solo parent workers earning less than $50,000 report needing leave in the prior 12-month period but were unable to take leave. Further, among leave takers, 43 percent of solo parents did not receive pay while on leave and 68 percent of solo parents also chose not to take leave for fear of job loss. In addition, 81 percent of single parents cited affordability as a major reason for not taking leave.
These figures are further exacerbated by this country’s history of discriminatory policies that have resulted in lower pay for women and people of color. According to data from the U.S. Census Bureau, in nine states, 50 percent or more of all women workers earn less than $15.00 per hour. However, even more striking, in 40 states, 50 percent of all women of color earn below a living wage. The fact of women’s, and particularly women of color’s, poverty level wages is exacerbated by the large percentages of mothers who are the primary, sole, or co-breadwinners for their families. As of 2017, 64.2 percent of mothers fit the description, and an incredible 84.4 percent of Black mothers were in this category.
Therefore, while it is unlikely that the Dobbs decision will be changed anytime in the near future, an expansion of the FMLA law could help to ameliorate at least some of the impact of the decision. This expansion must include both an expansion of leave to more workers – reducing or eliminating the requirements for a specified number of employees or for a specified tenure with an employer. The expansion must also include pay for the entire leave, or for many low-wage workers, which includes many potentially pregnant workers, the right to leave is meaningless. Finally, while some states have passed expanded leave laws, this legislation must be passed on a national level to ensure the coverage for those in all states – particularly those in states that have passed total abortion bans – even when the life of the pregnant individual is at risk. As the dissent in Dobbs noted, “Above all others, women lacking financial resources will suffer.” Passing legislation that will address some of this suffering should now be a priority.