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Thursday, May 26, 2022

The Future of Roe, Reproductive Rights, and Work Equality - my comments at today's USD event

As I posted a few days ago, we had today a panel on the Dobbs leak. It was co-sponsored by our new Center for Employment and Labor Policy CELP which I am honored to direct. I thought I would share my opening comments on the panel:

Thank you to our deans for initiating this important event, and for supporting our new Center for Employment and Labor Policy – CELP of which I am honored to be the founding director – we have a very vibrant and energetic employment and labor student association and together we will be planning many exciting events – so be on the lookout for all that – as I always say to my students, employment law intersects with every single field of law– so CELP will serve as a key hub for our community.

And of course – abortion rights have everything to do with the things we care about in employment policy: equality, privacy, and antidiscrimination, work-family support and balance, career trajectories, human capital enrichment, employee mobility, welfare and health care, and economic growth.

Now before I say something brief about women’s careers – I want to first say something more general – I am not quite a constitutional law expert; I am law professor, a woman, an immigrant, a mother of three girls, and a former clerk of the Israeli Supreme court so I do have some insight about the workings of justices and constitutional law and politics and i can say that what we are seeing today with the Supreme Court is far worse entanglement of law/politics than the traditional inevitable links – and expanding the court and imposing term limits is crucial. I want to say that the leaked decision has horrendous implications for our democracy that cannot be understated. If and when Dobbs overturns Roe, this will be the first time in American history that the Supreme Court overturns precedent in order to take away – rather than to expand – fundamental human rights. And so, I hope just that fact should be alarming enough and give us an understanding of how much at risk all our constitutional rights are right now.

Now on women’s reproductive rights and the workplace: because of time i will just give you seven bullet points –

  1. Decades of research shows how women’s education and workforce entry are significantly linked to family planning and to Roe. A 2021 study for example demonstrates that access to abortion is not correlated with population growth or decline – it simply means women choose when to have children, not how many.
  2. Women who do not have access to abortion are far more likely to further sink into a lifetime of deep poverty in the years following their abortion denial. Overturning Roe will further widen economic and racial inequality.
  3. Perversely, the United States is one of the world’s worst actors when it comes to family medical leave rights – it is basically the only developed country in the world that doesn’t have paid family and medical leave.
  4. When you look at the ongoing gender pay gap, still 80 cents on the dollar and far worse for women of color, the strongest predictor of the gap is what I and others call in the research the motherhood penalty and the fatherhood bonus, and I have a recent Columbia law review just about this issue that I am happy to share.
  5. In response to Dobbs, some corporate leaders like Microsoft and Amazon announced that they will support their pregnant workers by paying travel and medical expenses for employees who need to travel to get abortions in states where it is legal. This is of course an important private sector response, but:
  6. The women who will be affected by Dobbs the most are poor women, disproportionately Black and Latina women will not be covered by these benefits that are granted to the already higher skilled corporate employees.
  7. Finally, the States that banning abortion are the same states that lag in wages – that have lower wages, fewer workers' rights, and less access to health care.

So I will end by saying:

Abortion rights are Human Rights

Abortion Rights are Health Rights

Abortion Rights are Economic Rights


Posted by Orly Lobel on May 26, 2022 at 05:20 PM | Permalink


“We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.”

Every son and daughter of a human person, by virtue of the fact that they are, in essence a son or daughter of a human person, from the moment of conception, when they are brought into being, equal in Dignity, while being complementary as a beloved son or daughter, is endowed by Our Creator, God with the Capital G, with an inherent, Unalienable Right to Life, the securing and protection upon which, our inherent Unalienable Right to Liberty and The Pursuit Of Happiness depends.

“We hold these Truths to be self-evident, that all Men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the Pursuit of Happiness—-That to secure these Rights, Governments are instituted among Men…” - The Declaration Of Independence, which was the preamble to our Constitution.

The fact that a mother’s womb exists to protect and nurture all beloved sons and daughters during the most delicate stage of a human person’s development, which you refer to as “servitude”, does not change the fact that our Constitution serves for the posterity and prosperity of this Nation by securing and protecting the inherent, Unalienable Right to Life of every innocent beloved son or daughter from that moment we were created equal in Dignity, while being complementary as a beloved son or daughter at our conception which, in reality, occurs in the life of every human person, prior to the moment of our birth.

Posted by: N.D. | Jun 15, 2022 11:58:44 AM

The first comment provides protected religious belief regarding the "essence" of human persons. This question is a greatly debated one, underlining the value for religious freedom to allow each person to decide for themselves regarding it.

As a CONSTITUTIONAL matter, "personhood" is not so defined. A homo sapiens fertilized egg is not a legal person.

I don't think "personhood" by legal or philosophical purposes sensibly would so be defined. But, that is another matter.

Even if it was, the Constitution protects each one of us from forced servitude to another, including another attached to our bodies.

The equality aspects of the argument also hold true.

Again, N.D. -- as done for years -- can believe as they wish, and as long as comments, say as such.

Posted by: Joe | Jun 12, 2022 3:02:15 PM

The fact is, at no time during your Mother’s pregnancy or my Mother’s Pregnancy, could our personhood be disestablished; you have been you from the moment of your conception and I have been I since the moment of mine, and you and I refer to human persons, not places or things.

Which is why we can know through both Faith and reason, it is not possible for human persons to conceive a son or daughter, who is not, in essence a human person, and why your argument, with all due respect to you, is a non sequitur argument.

Posted by: N.D. | May 31, 2022 4:31:15 PM

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