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WOMEN'S ISSUES

Abortion

The right to abortion was affirmed by the Supreme Court in Roe v. Wade (1973). Since the 1980s, however, the Court has consistently allowed states to impose restrictions on this right. In Planned Parenthood of Southeastern Pennsylvania v. Casey (1992) the Court permitted Pennsylvania to limit abortions as long as state laws and regulations did not place an "undue burden" on pregnant women. The decision upheld a twenty-four-hour waiting period for abortions and parental consent requirements for minors seeking abortions. While the ruling did not overturn Roe it limited the 1973 decision. During the 1990s Congress and the Clinton administration battled over abortion and reproductive rights. President Bill Clinton ended bans on fetal tissue research and abortions in military hospitals and lifted the "gag" rule enacted in 1987 that prevented public health clinics receiving federal funds from discussing abortion as a family planning option. He also lifted the ban on testing of RU-486, an "abortion pill." By mid decade, however, with the new Republican majority Congress, activities restricting abortions resumed.

Partial Birth Abortion

In 1996 and 1998 Congress passed bans on "partial birth" abortions, a procedure used late-term to terminate pregnancies. On each occasion, however, President Clinton vetoed the measures and Congress was unable to override them. Similar restrictions on "partial birth" abortions were passed in several state legislatures and many of these bans have been challenged in the courts. In October 1999 the 7th U.S. Circuit Court of Appeals upheld Illinois and Wisconsin laws that prohibited partial birth abortions. A month earlier, however, another federal appeals court threw out similar laws in Nebraska, Arkansas, and Iowa. The conflicting results made it more likely, though not certain, that the Supreme Court would step in to resolve the issue. In March 1998 the Court voted six to three not to review the invalidation by an appeals court of an Ohio law that banned the procedure. The Supreme Court has not heard an abortion case since the 1992 Casey case.

Fetal Protection and Workplace Rights

In 1990 the U.S. Supreme Court reviewed a class action suit involving gender-based workplace discrimination and fetal rights. Johnson Controls, a battery manufacturer, implemented a workplace safety policy aimed at protecting fetuses from exposure to lead, a primary ingredient in batteries. Occupational exposure to lead entails health risks, including potential harm to any fetus. After eight employees became pregnant while maintaining blood lead levels exceeding Occupational Safety and Health Administration (OSHA) standards for workers planning to have children, the company announced a policy barring all women, except those whose infertility was medically documented, from jobs involving actual or potential lead exposure. A group of employees filed a class action suit in district court, claiming that the policy constituted a sex discrimination violation of Title VII of the Civil Rights Act of 1964, as amended. The district court, and later a federal appeals court, ruled in favor of the company, arguing that the fetal-protection policy was reasonably necessary to ensure workplace safety. On appeal, the Supreme Court ruled in International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, UAW, et al., v. Johnson Controls, Inc. (1991) that while it is constitutional to protect fetuses, it is a violation of federal law to use a gender-based policy that discriminates against workers on the basis of their sex as a means for protecting fetuses. The Court threw out the fetal-protection policy that excluded all fertile women, regardless of their childbearing intentions, from certain higher paying jobs where they might be exposed to lead. Writing for the majority, Justice Harry Andrew Blackmun argued that in protecting women rather than improving working conditions for all employees, the company had practiced sex discrimination.

Faulkner

In early 1993 Shannon Faulkner was accepted to The Citadel, an all-male state-supported military college in South Carolina. On her application and transcripts all references to her gender had been removed. When The Citadel discovered that she was female, it withdrew her acceptance. Faulkner filed suit against the school. A U.S. district judge ruled that the school had to permit Faulkner to attend day classes, but allowed The Citadel to prohibit her from joining the Corps of Cadets or participating in military training until her lawsuit was settled. Before she could register, however, a 4th U.S. Circuit Appeals Court judge stayed the lower court order, thereby preventing Faulkner from attending The Citadel. Several months later the Appeals Court allowed her into day classes. In January 1994 Faulkner became the first woman to attend day classes at The Citadel. The school appealed the ruling, but in April 1994 the 4th U.S. Circuit Court of Appeals ruled that Faulkner could join the military Corps of Cadets, unless the state of South Carolina established a court-approved program with similar military leadership education and training for women. Because the state was unable to set up a separate, but equal, program for women before the court deadline, it appeared that The Citadel would be forced to admit Faulkner as a cadet. The Citadel appealed to the U.S. Supreme Court, hoping to block Faulkner's admission. Justices William Hubbs Rehnquist and Antonin Scalia refused to do so. On 11 August 1994, Faulkner became the first female cadet in the 152-year history of The Citadel. Accompanied by federal marshals, Faulkner reported to campus the following day. Less than a week after entering the school as a cadet, however, she dropped out, claiming that the stress of the two and a half year legal battle made her unable to continue.

VMI and Women

In 1996 the Supreme Court ruled that another all-male military school, the Virginia Military Institute (VMI), would have to admit women. The United States v. Virginia et al. ruling was perceived as also applying to The Citadel. VMI claimed that it did not have to admit women if the state provided a separate, but equal, military program for women. The Court rejected this argument in its seven to one decision (Justice Clarence Thomas did not participate in the case because his son was attending VMI). Writing for the majority, Associate Justice Ruth Bader Ginsburg argued that the exclusion of women from the education opportunities at VMI denied them equal protection. She further contended that providing women with a similar program at another facility "does not cure the constitutional violation."

Sexual Harassment

After the Clarence Thomas nomination hearings, concerning whether or not he had sexually harassed Anita Hill, sexual harassment claims rose dramatically. Between 1990 and 1997, claims more than doubled. The Equal Employment Opportunity Commission (EEOC), a federal agency charged with enforcing civil rights in the workplace, reached record settlements with employers, increasing from $7.7 million in 1990 to $27 million in 1997. After the Supreme Court ordered admissions of women to The Citadel and VMI, several male cadets were suspended or expelled for sexually harassing female cadets, including the top cadet at VMI. Lawsuits followed these incidents. In November 1999 a female cadet who quit The Citadel settled a sexual harassment lawsuit against the school, a staff member, and two former cadets. Jeanie Mentavlos was awarded $135,000. Another former female cadet was awarded $34,000 in 1998 in her sexual harassment suit against The Citadel.