Why we need more feminists on the bench

The Supreme Court decided that women who have had maternity/family leave are not entitled to any accounting of that time towards their pension, if that leave pre-dated the Pregnancy and Disability Act. (At&T Corp V Hulteen (No. 07-543) 498 F. 3d 1001)

http://www.law.cornell.edu/supct/html/07-543.ZS.html

Once again, Justice Ginsberg dissents (joined by Justice Breyer).

Below is her dissenting opinion---

[May 18, 2009]
JUSTICE GINSBURG, with whom JUSTICE BREYER joins,
dissenting.
In General Elec. Co. v. Gilbert, 429 U. S. 125 (1976), this
Court held that a classification harmful to women based
on pregnancy did not qualify as discrimination “because of
. . . sex” prohibited by Title VII of the Civil Rights Act of
1964. 42 U. S. C. §2000e–2(a)(1). Exclusion of pregnancy
from an employer’s disability benefits plan, the Court
ruled, “is not a gender-based discrimination at all.” 429
U. S., at 136. See also id., at 138 (describing G. E.’s plan
as “facially nondiscriminatory” and without “any genderbased
discriminatory effect”).1 In dissent, JUSTICE
STEVENS wondered how the Court could come to that
conclusion, for “it is the capacity to become pregnant
which primarily differentiates the female from the male.”
Id., at 162.
Prior to Gilbert, all Federal Courts of Appeals presented
——————
1 The Court’s opinion in Gilbert extended to Title VII reasoning earlier
advanced in Geduldig v. Aiello, 417 U. S. 484 (1974). In that case,
the Court upheld against an equal protection challenge California’s
disability insurance system, which excluded coverage for disabilities
occasioned by normal pregnancy. California’s system, the Court noted,
did not divide workers according to their sex; instead, it “divide[d]
potential recipients into two groups—pregnant women and nonpregnant
persons.” Id., at 496–497, n. 20.
2 AT&T CORP. v. HULTEEN
GINSBURG, J., dissenting
with the question had determined that pregnancy discrimination
violated Title VII.2 Guidelines issued in 1972
by the Equal Employment Opportunity Commission
(EEOC or Commission) declared that disadvantageous
classifications of employees based on pregnancy-related
conditions are “in prima facie violation of Title VII.” 37
Fed. Reg. 6837 (1972). In terms closely resembling the
EEOC’s current Guideline, see 29 CFR §1604.10 (2008),
the Commission counseled:
“Written and unwritten employment policies and
practices involving . . . the accrual of seniority and
other benefits and privileges . . . shall be applied to
disability due to pregnancy or childbirth on the same
terms and conditions as they are applied to other
temporary disabilities.” 37 Fed. Reg. 6837.
The history of women in the paid labor force underpinned
and corroborated the views of the lower courts and the
——————
2 See Communications Workers of America v. AT&T Co., Long Lines
Dept., 513 F. 2d 1024 (CA2 1975); Wetzel v. Liberty Mut. Ins. Co., 511 F.
2d 199 (CA3 1975), vacated on other grounds and remanded, 424 U. S.
737 (1976); Gilbert v. General Elec. Co., 519 F. 2d 661 (CA4 1975), rev’d,
429 U. S. 125 (1976); Satty v. Nashville Gas Co., 522 F. 2d 850 (CA6
1975), aff’d in part, vacated in part, and remanded, 434 U. S. 136
(1977); Holthaus v. Compton & Sons, Inc. 514 F. 2d 651 (CA8 1975);
Berg v. Richmond Unified School Dist., 528 F. 2d 1208 (CA9 1975);
Hutchison v. Lake Oswego School Dist. No. 7, 519 F. 2d 961 (CA9 1975).
For decisions under state human rights laws to the same effect, see,
e.g., Brooklyn Union Gas Co. v. New York State Human Rights Appeal
Bd., 41 N. Y. 2d 84, 359 N. E. 2d 393 (1976); Anderson v. Upper Bucks
Cty. Area Vocational Technical School, 30 Pa. Commw. 103, 373 A. 2d
126 (1977); Quaker Oats Co. v. Cedar Rapids Human Rights Comm’n,
268 N. W. 2d 862 (Iowa 1978); Massachusetts Elec. Co. v. Massachusetts
Comm’n Against Discrimination, 375 Mass. 160, 375 N. E. 2d 1192
(1978); Minnesota Min. & Mfg. Co. v. State, 289 N. W. 2d 396 (Minn.
1979); Michigan Dept. of Civil Rights ex rel. Jones v. Michigan Dept. of
Civil Serv., 101 Mich. App. 295, 301 N. W. 2d 12 (1980); Badih v. Myers,
36 Cal. App. 4th 1289, 43 Cal. Rptr. 2d 229 (1995).
Cite as: 556 U. S. ____ (2009) 3
GINSBURG, J., dissenting
EEOC. In generations preceding—and lingering long
after—the passage of Title VII, that history demonstrates,
societal attitudes about pregnancy and motherhood severely
impeded women’s employment opportunities. See
Molnar, “Has the Millennium Yet Dawned?”: A History of
Attitudes Toward Pregnant Workers in America, 12 Mich.
J. Gender & L. 163, 170–176 (2005); S. Kamerman, A.
Kahn, & P. Kingston, Maternity Policies and Working
Women 32–38 (1983).
Congress swiftly reacted to the Gilbert decision. Less
than two years after the Court’s ruling, Congress passed
the Pregnancy Discrimination Act of 1978 (PDA) to overturn
Gilbert and make plain the legislators’ clear understanding
that discrimination based on pregnancy is discrimination
against women.3 The Act amended Title VII
to require that women affected by pregnancy “be treated
the same for all employment-related purposes, including
receipt of benefits under fringe benefit programs, as other
persons not so affected but similar in their ability or inability
to work.” 42 U. S. C. §2000e(k).
The PDA does not require redress for past discrimination.
It does not oblige employers to make women whole
for the compensation denied them when, prior to the Act,
they were placed on pregnancy leave, often while still
ready, willing, and able to work, and with no secure right
to return to their jobs after childbirth.4 But the PDA does
——————
3 See, e.g., H. R. Rep. No. 95–948, p. 3 (1978) (“[T]he assumption that
women will become pregnant and leave the labor force . . . is at the root
of the discriminatory practices which keep women in low-paying and
dead-end jobs.”).
4 For examples of once prevalent restrictions, see Turner v. Utah
Dept. of Employment Security, 423 U. S. 44 (1975) (per curiam) (state
statute made pregnant women ineligible for unemployment benefits for
a period extending from 12 weeks before the expected date of childbirth
until six weeks after childbirth); Cleveland Bd. of Ed. v. LaFleur, 414
U. S. 632, 634–635 (1974) (school board rule forced pregnant public
4 AT&T CORP. v. HULTEEN
GINSBURG, J., dissenting
protect women, from and after April 1979, when the Act
became fully effective, against repetition or continuation of
pregnancy-based disadvantageous treatment.
Congress interred Gilbert more than 30 years ago, but
the Court today allows that wrong decision still to hold
sway. The plaintiffs (now respondents) in this action will
receive, for the rest of their lives, lower pension benefits
than colleagues who worked for AT&T no longer than they
did. They will experience this discrimination not simply
because of the adverse action to which they were subjected
pre-PDA. Rather, they are harmed today because AT&T
has refused fully to heed the PDA’s core command: Hereafter,
for “all employment-related purposes,” disadvantageous
treatment “on the basis of pregnancy, childbirth, or
related medical conditions” must cease. 42 U. S. C.
§2000e(k) (emphasis added). I would hold that AT&T
committed a current violation of Title VII when, post-PDA,
it did not totally discontinue reliance upon a pension
calculation premised on the notion that pregnancy-based
classifications display no gender bias.
I
Enacted as an addition to the section defining terms
used in Title VII, the PDA provides:
“The terms ‘because of sex’ or ‘on the basis of sex’
include, but are not limited to, because of or on the
basis of pregnancy, childbirth, or related medical conditions;
and women affected by pregnancy, childbirth,
or related medical conditions shall be treated the
same for all employment-related purposes, including
——————
school teachers to take unpaid maternity leave five months before the
expected date of childbirth, with no guarantee of re-employment). Cf.
Nevada Dept. of Human Resources v. Hibbs, 538 U. S. 721, 736–737
(2003) (sex discrimination, Congress recognized, is rooted, primarily, in
stereotypes about “women when they are mothers or mothers-to-be”
(internal quotation marks omitted)).
Cite as: 556 U. S. ____ (2009) 5
GINSBURG, J., dissenting
receipt of benefits under fringe benefit programs, as
other persons not so affected but similar in their ability
or inability to work . . . .” 42 U. S. C. §2000e(k).
The text of the Act, this Court has acknowledged, “unambiguously
expressed [Congress’] disapproval of both the
holding and the reasoning of the Court in the Gilbert
decision.” Newport News Shipbuilding & Dry Dock Co. v.
EEOC, 462 U. S. 669, 678 (1983). “Proponents of the
[PDA],” the Court observed, “repeatedly emphasized that
the Supreme Court had erroneously interpreted congressional
intent and that amending legislation was necessary
to reestablish the principles of Title VII law as they had
been understood prior to the Gilbert decision.” Id., at 679.
See also California Fed. Sav. & Loan Assn. v. Guerra, 479
U. S. 272, 284–285 (1987) (explaining that “the first clause
of the PDA reflects Congress’ disapproval of the reasoning
in Gilbert,” while “the second clause . . . illustrate[s] how
discrimination against pregnancy is to be remedied”). Cf.
Newport News, 462 U. S., at 694 (Rehnquist, J., dissenting)
(criticizing the Court for concluding that the PDA
“renders all of Gilbert obsolete”).
Today’s case presents a question of time. As the Court
comprehends the PDA, even after the effective date of the
Act, lower pension benefits perpetually can be paid to
women whose pregnancy leaves predated the PDA. As to
those women, the Court reasons, the disadvantageous
treatment remains as Gilbert declared it to be: “facially
nondiscriminatory,” and without “any gender-based discriminatory
effect,” 429 U. S., at 138. See ante, at 8.
There is another way to read the PDA, one better attuned
to Congress’ “unambiguou[s] . . . disapproval of both
the holding and the reasoning” in Gilbert. Newport News,
462 U. S., at 678. On this reading, the Act calls for an
immediate end to any pretense that classification on the
basis of pregnancy can be “facially nondiscriminatory.”
6 AT&T CORP. v. HULTEEN
GINSBURG, J., dissenting
While the PDA does not reach back to redress discrimination
women encountered before Congress overruled Gilbert,
the Act instructs employers forthwith to cease and
desist: From and after the PDA’s effective date, classifications
treating pregnancy disadvantageously must be
recognized, “for all employment-related purposes,” including
pension payments, as discriminatory both on their face
and in their impact. So comprehended, the PDA requires
AT&T to pay Noreen Hulteen and others similarly
situated pension benefits untainted by pregnancy-based
discrimination.
II
The Court’s rejection of plaintiffs’ claims to pension
benefits undiminished by discrimination “because of
[their] sex,” 42 U. S. C. §2000e–2(h), centers on §703(h) of
Title VII, as construed by this Court in Teamsters v.
United States, 431 U. S. 324 (1977). See ante, at 4–8.
Section 703(h) permits employers “to apply different standards
of compensation . . . pursuant to a bona fide seniority
. . . system.” 42 U. S. C. §2000e–2(h). Congress enacted
§703(h), Teamsters explained, to “exten[d] a measure
of immunity” to seniority systems even when they “operate
to ‘freeze’ the status quo of prior discriminatory employment
practices.” 431 U. S., at 350 (quoting Griggs v. Duke
Power Co., 401 U. S. 424, 430 (1971)).
Teamsters involved a seniority system attacked under
Title VII as perpetuating race-based discrimination.
Minority group members ranked low on the seniority list
because, pre-Title VII, they were locked out of the job
category in question. But the seniority system itself, the
Court reasoned, “did not have its genesis in . . . discrimination,”
contained no discriminatory terms, and applied
“equally to all races and ethnic groups,” 431 U. S., at 355–
356. Therefore, the Court concluded, §703(h) sheltered the
system despite its adverse impact on minority group
Cite as: 556 U. S. ____ (2009) 7
GINSBURG, J., dissenting
members only recently hired for, or allowed to transfer
into, more desirable jobs. See id., at 356.
This case differs from Teamsters because AT&T’s seniority
system itself was infected by an overt differential. Cf.
ante, at 8 (“[R]ule of differential treatment was an element
of the seniority system itself . . . .”). One could scarcely
maintain that AT&T’s scheme was “neutral on [its] face
and in intent,” discriminating against women only “in
effect.” Cf. Teamsters, 431 U. S., at 349. Surely not a
term fairly described as “equally [applicable] to all,” id., at
355, AT&T’s prescription regarding pregnancy leave
would gain no immunity under §703(h) but for this Court’s
astonishing declaration in Gilbert: “[E]xclusion of pregnancy
from a disability-benefits plan providing general
coverage,” the Court decreed, “[was] not a gender-based
discrimination at all.” 429 U. S., at 136. See ante, at 8
(because of Gilbert, AT&T’s disadvantageous treatment of
pregnancy leave “did not taint the system under the terms
of [§703(h)]”).
Were the PDA an ordinary instance of legislative revision
by Congress in response to this Court’s construction
of a statutory text, I would not dissent from today’s decision.
But Congress made plain its view that Gilbert was
not simply wrong about the character of a classification
that treats leave necessitated by pregnancy and childbirth
disadvantageously. In disregarding the opinions of other
courts, see supra, at 2, n. 2, of the agency that superintends
enforcement of Title VII, see supra, at 2,5 and, most
——————
5 The Equal Employment Opportunity Commission’s (EEOC) current
Compliance Manual counsels: “While the denial of service credit to
women on maternity leave was not unlawful when [the charging party]
took her leave . . . , the employer’s decision to incorporate that denial of
service credit in calculating seniority [post-PDA] is discriminatory.” 2
EEOC Compliance Manual §3, p. 627:0023 (effective Oct. 3, 2000).
EEOC compliance manuals, this Court has recognized, “reflect ‘a body
of experience and informed judgment to which courts and litigants may
8 AT&T CORP. v. HULTEEN
GINSBURG, J., dissenting
fundamentally, the root cause of discrimination against
women in the paid labor force, this Court erred egregiously.
Congress did not provide a remedy for pregnancybased
discrimination already experienced before the PDA
became effective. I am persuaded by the Act’s text and
legislative history, however, that Congress intended no
continuing reduction of women’s compensation, pension
benefits included, attributable to their placement on pregnancy
leave.
III
A few further considerations influence my dissenting
view. Seeking equal treatment only from and after the
PDA’s effective date, plaintiffs present modest claims. As
the Court observes, they seek service credit, for pension
benefit purposes, for the periods of their pregnancy leaves.
For the named plaintiffs, whose claims are typical, the
uncounted leave days are these: “seven months . . . for
Noreen Hulteen; about six months for Eleanora Collet;
and about two for Elizabeth Snyder and Linda Porter.”
Ante, at 3. See also 498 F. 3d 1001, 1004 (CA9 2007) (en
banc) (case below). Their demands can be met without
disturbing settled expectations of other workers, the core
concern underlying the shelter §703(h) provides for seniority
systems. See Franks v. Bowman Transp. Co., 424 U. S.
747, 766, 773, and n. 33 (1976) (“ ‘benefit’ seniority,” unlike
“ ‘competitive status’ seniority,” does not conflict with
economic interests of other employees).
Furthermore, as Judge Rymer explained in her opinion
dissenting from the Ninth Circuit’s initial panel opinion,
441 F. 3d 653, 665–666 (2006), the relief plaintiffs request
is not retroactive in character. Plaintiffs request no backpay
or other compensation for past injury. They seek
——————
properly resort for guidance.’ ” Federal Express Corp. v. Holowecki, 552
U. S. ___, ___ (2008) (slip op., at 8) (quoting Bragdon v. Abbott, 524
U. S. 624, 642 (1998)).
Cite as: 556 U. S. ____ (2009) 9
GINSBURG, J., dissenting
pension benefits, now and in the future, equal to the benefits
received by others employed for the same length of
time. The actionable conduct of which they complain is
AT&T’s denial of equal benefits to plaintiffs “in the post-
PDA world.” Id., at 667.
Nor does it appear that equal benefits for plaintiffs
during their retirement years would expose AT&T to an
excessive or unmanageable cost. The plaintiffs’ class is
not large; it comprises only women whose pregnancy
leaves predated April 29, 1979 and whose employment
continued long enough for their pensions to vest. The
periods of service involved are short—several weeks or
some months, not years. And the cost of equal treatment
would be spread out over many years, as eligible women
retire.
IV
Certain attitudes about pregnancy and childbirth,
throughout human history, have sustained pervasive,
often law-sanctioned, restrictions on a woman’s place
among paid workers and active citizens. This Court so
recognized in Nevada Dept. of Human Resources v. Hibbs,
538 U. S. 721 (2003). Hibbs rejected challenges, under the
Eleventh and Fourteenth Amendments, to the Family and
Medical Leave Act of 1993, 107 Stat. 6, 29 U. S. C. §2601
et seq., as applied to state employees. The Court’s opinion
featured Congress’ recognition that,
“[h]istorically, denial or curtailment of women’s employment
opportunities has been traceable directly to
the pervasive presumption that women are mothers
first, and workers second. This prevailing ideology
about women’s roles has in turn justified discrimination
against women when they are mothers or mothers-
to-be.” Joint Hearing before the Subcommittee on
Labor-Management Relations and the Subcommittee
on Labor Standards of the House Committee on Edu10
AT&T CORP. v. HULTEEN
GINSBURG, J., dissenting
cation and Labor, 99th Cong., 2d Sess., 100 (1986)
(quoted in Hibbs, 538 U. S., at 736).6
Several of our own decisions, the opinion in Hibbs acknowledged,
538 U. S., at 729, exemplified the once “prevailing
ideology.” As prime illustrations, the Court cited
Bradwell v. State, 16 Wall. 130 (1873);7 Muller v. Oregon,
208 U. S. 412 (1908);8 Goesaert v. Cleary, 335 U. S. 464
(1948);9 and Hoyt v. Florida, 368 U. S. 57 (1961).10 The
Hibbs opinion contrasted Muller, Goesaert, and Hoyt with
more recent opinions: Commencing in 1971, the Court had
shown increasing awareness that traditional sex-based
classifications confined or depressed women’s opportunities.
538 U. S., at 728–730. Representative of the
jurisprudential change, Hibbs cited Reed v. Reed, 404
U. S. 71 (1971);11 Frontiero v. Richardson, 411 U. S. 677
——————
6 See also H. R. Rep. No. 95–948, pp. 6–7 (“Women are still subject to
the stereotype that all women are marginal workers. Until a woman
passes the child-bearing age, she is viewed by employers as potentially
pregnant.”).
7 Bradwell upheld a State’s exclusion of women from the practice of
law. In an exorbitant concurring opinion, Justice Bradley wrote that
“the female sex [is] evidently unfi[t] . . . for many of the occupations of
civil life.” 16 Wall., at 141. He elaborated: “The paramount destiny
and mission of woman are to fulfil the noble and benign offices of wife
and mother. This is the law of the Creator.” Ibid.
8 Muller upheld a State’s hours-of-work limitation applicable to
women only. “[T]o preserve the strength and vigor of the race,” the
Court observed, “the physical well-being of woman becomes an object of
public interest and care.” 208 U. S., at 421. Cf. Automobile Workers v.
Johnson Controls, Inc., 499 U. S. 187, 211 (1991) (“Concern for a
woman’s existing or potential offspring historically has been the excuse
for denying women equal employment opportunities.”).
9 Goesaert upheld a state law prohibiting women from working as
bartenders (unless the woman’s husband or father owned the tavern).
10 Hoyt sustained a state law exempting all women from the obligation
to serve on juries.
11 Reed invalidated a state law that preferred males to females for
appointment as estate administrators.
Cite as: 556 U. S. ____ (2009) 11
GINSBURG, J., dissenting
(1973);12 Craig v. Boren, 429 U. S. 190 (1976);13 and United
States v. Virginia, 518 U. S. 515 (1996).14
Gilbert is aberrational not simply because it placed
outside Title VII disadvantageous treatment of pregnancy
rooted in “stereotype-based beliefs about the allocation of
family duties,” Hibbs, 538 U. S., at 730; Gilbert also advanced
the strange notion that a benefits classification
excluding some women (“pregnant women”) is not sexbased
because other women are among the favored class
(“nonpregnant persons”).15 The very first Title VII sexdiscrimination
case heard by the Court, Phillips v. Martin
Marietta Corp., 400 U. S. 542 (1971) (per curiam), however,
rejected similar reasoning. At issue in Phillips was
an employer’s refusal to hire mothers of pre-school-age
children. Phillips yielded a per curiam opinion recognizing
that Title VII applies to classifications disadvantageous
to some, but not most, women. See, e.g., Phillips v.
Martin Marietta Corp., 416 F. 2d 1257, 1262 (CA5 1969)
(Brown, C. J., dissenting from denial of en banc review)
(“A mother is still a woman. And if she is denied work
outright because she is a mother, it is because she is a
woman. Congress said that could no longer be done.”);
Sprogis v. United Air Lines, Inc., 444 F. 2d 1194 (CA7)
——————
12 Frontiero extended to married female members of the uniformed
services spousal benefits granted by statute automatically only to male
members.
13 Craig held that young men were entitled to purchase 3.2% beer at
the same age as young women.
14 Virginia, the Court held, could not maintain the Virginia Military
Institute as an all-male college without offering women a genuinely
equal educational opportunity. For a fuller account of the Court’s
decisions on the constitutionality of gender-based classifications, see
Virginia, 518 U. S., at 531–534.
15 The terms “pregnant women” and “nonpregnant persons” first appeared
in Geduldig, 417 U. S., at 496–497, n. 20. See supra, at 1, n. 1.
Gilbert repeated the terms, quoting the footnote in Geduldig, 429 U. S.,
at 135.
12 AT&T CORP. v. HULTEEN
GINSBURG, J., dissenting
(refusal to employ married women violates Title VII), cert.
denied, 404 U. S. 991 (1971).16
Grasping the connection Gilbert failed to make, a District
Court opinion pre-Gilbert, Wetzel v. Liberty Mut. Ins.
Co., 372 F. Supp. 1146 (WD Pa. 1974), published this deft
observation. In response to an employer’s argument that
its disadvantageous maternity leave and pregnancy disability
income protection policies were not based on sex,
the court commented: “[I]t might appear to the lay mind
that we are treading on the brink of a precipice of absurdity.
Perhaps the admonition of Professor Thomas Reed
Powell to his law students is apt; ‘If you can think of something
which is inextricably related to some other thing and
not think of the other thing, you have a legal mind.’ ” Id.,
at 1157.
Congress put the Court back on track in 1978 when it
amended Title VII to repudiate Gilbert’s holding and
reasoning. See Newport News, 462 U. S., at 678; California
Fed., 479 U. S., at 284–285; supra, at 4–5.17 Congress’
——————
16 See also the EEOC’s Guideline, initially published in 1965, and now
codified in 29 CFR §1604.4:
“The Commission has determined that an employer’s rule which forbids
or restricts the employment of married women and which is not applicable
to married men is a discrimination based on sex prohibited by
Title VII of the Civil Rights Act. It does not seem to us relevant that
the rule is not directed against all females, but only against married
females, for so long as sex is a factor in the application of the rule, such
application involves a discrimination based on sex.” 30 Fed. Reg. 14928
(1965).
17 For critical commentary on Gilbert and its forerunner, Geduldig v.
Aiello, see, e.g., Bartlett, Pregnancy and the Constitution: The Uniqueness
Trap, 62 Calif. L. Rev. 1532, 1551–1566 (1974); Eskridge, America’s
Statutory “constitution,” 41 U. C. D. L. Rev. 1, 39–40, and n. 175
(2007); Karst, The Supreme Court 1976 Term Foreword: Equal Citizenship
Under the Fourteenth Amendment, 91 Harv. L. Rev. 1, 54, n. 304
(1977); Law, Rethinking Sex and the Constitution, 132 U. Pa. L. Rev.
955, 983–984, and nn. 107–109 (1984); Roelofs, Sex Discrimination and
Insurance Planning: The Rights of Pregnant Men and Women Under
Cite as: 556 U. S. ____ (2009) 13
GINSBURG, J., dissenting
swift and strong repudiation of Gilbert, the Court today
holds, does not warrant any redress for the plaintiffs in
this case. They must continue to experience the impact of
their employer’s discriminatory—but, for a short time,
Gilbert-blessed—plan. That outcome is far from inevitable.
It is at least reasonable to read the PDA to say, from
and after the effective date of the Act, no woman’s pension
payments are to be diminished by the pretense that pregnancy-
based discrimination displays no gender bias.
I would construe the Act to embrace plaintiffs’ complaint,
and would explicitly overrule Gilbert so that the
decision can generate no more mischief.
* * *
For the reasons stated, I would affirm the Ninth Circuit’s
judgment.
——————
General Electric Co. v. Gilbert, 22 St. Louis U. L. J. 101, 120–123
(1978); Schwartz, Equalizing Pregnancy: The Birth of a Super-Statute
33–57 (2005), http://lsr.nellco.org/yale/ylsspps/papers/41 (as visited May
14, 2009, and in Clerk of Court’s case file); Siegel, Reasoning from the
Body: A Historical Perspective on Abortion Regulation and Questions of
Equal Protection, 44 Stan. L. Rev. 261, 268–272 (1992); Siegel, You’ve
Come a Long Way, Baby: Rehnquist’s New Approach to Pregnancy
Discrimination in Hibbs, 58 Stan. L. Rev. 1871, 1873, 1878, 1891–1893
(2006); Taub & Williams, Will Equality Require More Than Assimilation,
Accommodation or Separation from the Existing Social Structure?,
37 Rutgers L. Rev. 825, 832–836 (1985).