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The Leadership Conference on Civil and Human Rights

The Nation's Premier Civil and Human Rights Coalition

The Leadership Conference on Civil and Human Rights  & The Leadership Conference Education Fund
The Nation's Premier Civil and Human Rights Coalition

Women's Rights: What's At Stake for All Americans with a Supreme Court Vacancy

IndependentCourt.org - 7/15/05

A number of rights, freedoms, and legal safeguards protecting all Americans currently hang in the balance, given the sharply divided makeup of the U.S. Supreme Court. It is critical that future appointments to the Court are committed to protecting our rights and the fundamental principle of an independent judiciary. Justices should not be on an ideological crusade to shift the direction of the Court. As shown by the narrowly decided cases below, the Constitutional right to privacy, including a woman's right to choose, is not secure. Protections against sex discrimination, sexual harassment and violence against women are at risk.

The landmark Supreme Court decision, Roe v. Wade (1973), that guaranteed a woman's right to choose, hangs by a thread. The core legal protections set forth in Roe that ensure women's health and give women access to safe reproductive healthcare are at stake with a Supreme Court vacancy. When the Court struck down a Nebraska law in Stenberg v. Carhart (2000), four Justices made it clear that they support either overturning Roe v. Wade or chipping away at its protections until it becomes meaningless. Both Justices Scalia and Thomas - who President Bush has said are his ideal Justices - have said, "We believe Roe v. Wade was wrongly decided and that it can and should be overruled." Justice Thomas has even said there is no right to privacy at all, which could put even women's access to birth control in jeopardy.

Sex Discrimination & Harassment

Jackson v. Birmingham Board of Education (2005) - Earlier this year, Justice O'Connor wrote the majority opinion in a 5-4 ruling that a claim may be brought under Title IX to challenge a school's retaliation against an employee who complains of sex discrimination in violation of Title IX. The plaintiff in this case was the coach of a girls' high school basketball team who was stripped of his coaching position when he complained about unequal treatment for the female athletes.

Brentwood Academy v. Tennessee Secondary School Athletic Association (2001) - Justice O'Connor was in the majority in a 5-4 ruling that a state high school athletic association is engaged in state action and can therefore be sued under the Equal Protection clause of the Constitution.

Davis v. Monroe County Board of Education (1999) - Justice O'Connor wrote the majority opinion in a 5-4 ruling holding that a claim may be brought under Title IX to challenge the sexual harassment by one student of another where the school authorities have failed to act. However, the dissent by Justices Scalia, Thomas and Rehnquist would prevent such Title IX protection for students who are the victims of from sexual harassment or other types of discrimination by other students.

Equal Protection

If the dissents in J.E.B. v. Alabama (1994) by Justices Scalia, Thomas and Chief Justice Rehnquist were to become the state of the law, gender discrimination in jury selection would become permissible.

In Mississippi University for Women v. Hogan (1982), a 5-4 decision, the Court held that a state-supported university could not exclude men from admission to its nursing school based on gender stereotypes. Justice O'Connor wrote the majority opinion and emphasized the dangers of laws and public policies that are based on archaic stereotypes and fixed notions concerning the roles and abilities of men and women.

Violence Against Women

United States v. Morrison (2000) - A 5-4 majority said that the civil remedies provided under the Violence Against Women Act, which provides a federal civil remedy for the victims of gender-motivated violence - including sexual assault, were unconstitutional. Justice Thomas indicated he would go even further than the majority decision and would forbid such law even where substantial effects clearly exist.

Affirmative Action

Grutter v. Bollinger (2003) - A landmark 5-4 decision, the Supreme Court reaffirmed the legality of affirmative action programs and the right of state colleges and universities to use affirmative action in their admissions policies to increase educational opportunities for minorities and to promote racial diversity on campus.

Right to Privacy and Choice

Stenberg v. Carhart (2000) - Justice O'Connor was in the majority of a 5-4 ruling that struck down a Nebraska law that would have had the effect of banning abortion as early as the 12th week of pregnancy and that lacked any exception to protect a woman's health. It is important to note that Justice O'Connor was one of the three Justices who signed the pivotal plurality decision in Casey v. Planned Parenthood (1992), in which the Court reaffirmed the essential holding of Roe v. Wade protecting a woman's right to choose, and she was the fifth vote in the majority opinion holding that women's health must be the paramount concern when determining the constitutionality of an abortion restriction.

In the next Term of the Court, starting in October, several cases will be decided that are particularly important to women, such as:

Ayotte v. Planned Parenthood of Northern New England - The Court will review a New Hampshire law restricting abortion access and could decide whether laws that restrict abortion access must include an exception to protect women's health and safety. The Court will also consider whether to change the standard courts use when they decide whether to block abortion restrictions. A new standard could make it much more difficult for women and doctors to challenge onerous restrictions and have a drastic impact on the right to choose.

Scheidler v. National Organization for Women - The Court will consider issues relating to whether women's groups and abortion clinics can sue anti-abortion protesters under the federal RICO (Racketeer Influenced and Corrupt Organizations) law. 

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