March 16, 2016
Page 7
O PINION
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‘Refuse and Obstruct’ Leave Women in Limbo
The country
deserves better
m artha b urk
Senators,
constitutional
scholars may tell you, must “ad-
vise and consent” on the pres-
ident’s Supreme Court nomi-
nees. But apparently the official
GOP policy is to “refuse and
obstruct.” They’ve vowed not
even to give President Obama’s
nominees a vote.
These Republicans claim that
leaving the Supreme Court un-
derstaffed is no big deal. Well,
it’s certainly a big deal for
women. Pending cases on abor-
tion, birth control, education,
and public employee unions
are all sitting before a divided
court.
The scariest case is Whole
Woman’s Health v. Cole.
It’s a challenge to a Texas law
that would close all but about
10 abortion clinics in the state
— down from more than 40 —
by requiring them to essentially
become mini-hospitals. They’d
have to employ only doctors
with admitting privileges at
by
nearby hospitals, a regulation
almost unheard of for safe and
common procedures like abor-
tion.
Since an appeals court up-
held the requirements, a 4-4
deadlock on the Supreme Court
would give Texas the green
light to enforce them. And it
would almost certainly encour-
age other states to enact similar
laws.
On the birth control front,
the court will consider Zubik
v. Burwell. A successor to the
Hobby Lobby case, it’s an ar-
gument over whether religious-
ly affiliated institutions have
to observe the Affordable Care
Act’s requirement that employ-
er-provided health plans cover
birth control.
These groups are allowed to
avoid the requirement by filling
out a form, in which case the
government will arrange with
their insurer to cover their em-
ployees. A few of these groups
are claiming that still makes
them complicit in sinful con-
duct.
A 4-4 tie at the Supreme Court
would be a mixed bag, since
most — but not all — appeals
court decisions have upheld the
accommodation as not burden-
some to religious practice.
Meanwhile, established labor
law is on the line in Friedrichs v.
California Teachers Association,
where the court will consider
whether public employees who
choose not to join unions can
still be required to pay fees for
collective bargaining activities.
A decision against the unions
could mortally wound them.
According to the National
Women’s Law Center, women
are the majority of the public
sector workforce, and the wage
gap with their male counter-
parts is smaller for public union
women than non-union wom-
en. The lower court favored the
unions, so a tie would stave off
a major blow to their viability.
But that’s still a lot to risk.
Women are now also the
majority of college students,
and women of color could be
greatly affected by a decision in
Fisher v. University of Texas. In
that case, the court will decide
whether the school’s race con-
scious admissions program vi-
olates the Constitution’s equal
protection principles.
Justice Elena Kagan has re-
cused herself. So if the Senate
leaves Scalia’s seat unfilled, the
case will be decided by seven
justices — which means there
can be no tie. Three judges —
John Roberts, Clarence Thom-
as, and Samuel Alito — oppose
affirmative action, and a fourth,
Anthony Kennedy, has previ-
ously expressed doubts about
the University of Texas policy.
So what’s the score?
In four cases affecting wom-
en the most, two could go in
women’s favor with tie votes. A
third tie vote would go against
women, and a 4-3 conservative
majority would hurt them in the
final case as well.
However you score it, Senate
Republicans are leaving women
in limbo until a new justice is
chosen and new cases can be
brought. That could take years.
Women — and the country —
deserve better.
Martha Burk is the director
of the Corporate Accountability
Project for the National Coun-
cil of Women’s Organizations.
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