SCOTUS “Pregnancy Discrimination” Case Tempts Pro-Lifers to Flip-Flop on State Coercion

The abortion debate ultimately concerns two concepts: the sanctity of human life and the proper application of civil law. Pro-lifers generally champion the latter, while abortion champions pervert it with convoluted judicial rulings that unjustly insulate their desired policies from the democratic process and regulatory mandates that illegally and unconstitutionally compel private citizens and organizations to do their bidding. They lost one such battle in 2014 when the Supreme Court ruled that forcing religious businesses to provide abortifacient drugs violated the Religious Freedom Restoration Act.

But last December, 24 pro-life organizations took a more favorable view of federal workplace intervention. Led by Americans United for Life, a coalition of groups including the Susan B. Anthony List, American Life League, and Students for Life of America filed an amicus curiae brief in Young v. UPS, a Supreme Court battle over alleged pregnancy discrimination. AUL summarizes:

The case involves the 36-year-old Pregnancy Discrimination Act (PDA) and whether it offers any real protection to women who choose life for their unborn children. “Pro-life and pro-abortion advocates agree: This case is about protecting pregnant mothers from employment discrimination,” noted [AUL President & CEO Dr. Charmaine] Yoest. “Women should not suffer physical hardship at work or lose their jobs because they are having a baby. Most especially, pregnant mothers should not be refused the same accommodation offered others with similar work challenges” […]

Peggy Young was a driver for UPS when she became pregnant. Though other workers with similar work challenges received a “lighter duty” accommodation, Ms. Young was denied an accommodation during her pregnancy, in violation of the federal PDA. Peggy lost in the two lower courts.

The court ruled 6-3 in Young’s favor in June, and a few days ago she and UPS reached a settlement. But while the temptation to declare victory and move on is understandable, a few words are in order to remind fellow pro-lifers that limited-government, natural-rights principles are just as binding in sympathetic cases as unsympathetic ones.

At the time, AUL senior counsel Clarke Forsythe argued that the violation was clear:

The act is relatively short and simple. It contains two clauses. The first says that sex discrimination prohibited by Title VII includes “discrimination on the basis of pregnancy.” The second says that pregnant women “shall be treated the same for all employment related purposes … as other persons not so affected but similar in their ability or inability to work” […]

Though one federal court properly concluded that a pregnant worker “must demonstrate only that another employee who is similarly situated in her or his ability to work received more favorable benefits,” another federal court held to the contrary and ruled against Young, stating, “to find otherwise would be to transform an anti-discrimination statute into a requirement to provide accommodation to pregnant employees, perhaps even at the expense of other, non-pregnant employees.”

But Young didn’t ask for a new or special accommodation, only that the “lighter duty” accommodation provided to others should have been available to her. The plain language of the act requires employers to provide pregnant workers with the “same” accommodations that they provide to other employees who have “a similar ability or inability to work.”

Granted, a ruling that UPS violated the Pregnancy Discrimination Act wouldn’t automatically be judicial activism depending on how clear-cut the text was (the PDA’s own constitutionality notwithstanding), but there were instances of male injuries for which UPS wouldn’t make light-duty accommodations, so it wasn’t a slam dunk. The two most pro-life originalists on the court, Clarence Thomas and Antonin Scalia, dissented, recognizing that it wasn’t pregnancy discrimination to account for the fact that pregnancy can impair some tasks in the same way other conditions can.

It’s true that employers should do whatever they realistically can to accommodate pregnant workers, both in understanding of pregnancy’s difficulties and in appreciation of providing for new lives. So it’s understandable how some could see a pro-life role here in alleviating pregnancy’s economic strain—up to a point.

But it’s disturbing to see fellow pro-lifers so enthusiastically call on the courts to force private employers to run their businesses according to our preferences, especially after fighting similar impositions from the other side.

Yes, obviously, the evil of abortion puts compulsory abortifacient subsidization on a far, far worse plane. Obviously, forcing employers to make their policies more pregnancy-friendly is in a different moral universe than forcing them to take part in killing people. But pro-lifers ought to understand that the legitimacy of state force isn’t solely defined by the decency of the outcome.

After all, the contraception mandate wasn’t unconstitutional only because RFRA and the Free Exercise Clause said so. The Constitution doesn’t give the feds open-ended power to control anything that particular laws or amendments haven’t expressly cordoned off. No, in dictating the terms of voluntary agreements between employer and employee, HHS exceeded the scope of the Constitution’s enumerated powers. Barack Obama and Ruther Bader Ginsburg don’t own Hobby Lobby, and neither do pro-lifers own UPS.

And this isn’t just a question of philosophical purity. The logistics simply don’t work. The central fallacy of the Left’s economic vision is assuming that good motives magically mean things will work out just fine in practice. But it doesn’t work that way. Economies have too many unknown moving parts. As Matt Walsh (apparently one of the only prominent pro-life commentators dissenting from team AUL) explained:

[W]ho should lose their desk job so that Peggy can have it while she’s pregnant? And who do they hire to do her old job? And who gets fired when she goes back to that job? And what if they don’t have it in the budget to make these changes? And what if they don’t need another person working a desk? And what if she’s inefficient or ineffectual at that job? And what if her work ethic, skill level, and attitude can’t justify making all of these adjustments on her behalf? And what about senior employees, men and women, who want to be moved to a light duty position but now get cut in line by someone who hasn’t earned it? How could the government or the Supreme Court possibly have an adequate vantage point by which to take all of these things into consideration?

[…] I completely, totally, without hesitation believe that all human beings should do whatever they can to help pregnant women. I believe employers bear that moral responsibility, too. However you can’t turn the moral responsibility into a legal responsibility because you, the Supreme Court, and the feds can’t look into an employer’s heart and assess his motivations, nor can you really look at his books and assess what sort of accommodations he can afford to make, nor can you sit in his HR office and decide who gets hired or fired to make the accommodation, nor can you stand off at a distance and declare that this pregnant woman is suddenly capable of doing some other job, nor can you wave your wand and make that job appear out of thin air. You can’t. The government can’t. The Supreme Court can’t. Only the employer can, and even he can’t do the magic wand thing.

Besides, as the Wall Street Journal pointed out, the public attention Young’s brought to bear has already pressured UPS to change its policy, and other companies have surely noticed as well. Why run to the courts to enact a change the culture of life has already achieved?

Keep in mind that pro-aborts have an endless wish list of laws, regulations, and programs they love to blackmail pro-lifers into supporting just to prove we’re not heartless theocrats. Pro-lifers usually recognize that’s a false choice, confident that the extensive work we do to help women ourselves instead of outsourcing it to bureaucrats speaks for itself. Granting them this won’t appease them—it’ll just lend tacit endorsement to the premises that compassion is measured by how heavily we regulate the world around us, and that the Supreme Court’s job is to enforce an idealized vision of society, rather than impartially uphold the Constitution.

When it comes to abortion and contraception, we know better than that. So we also need to recognize that our responsibility to respect liberty and follow the Constitution applies to more issues than protecting the unborn.

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