The Washington PostDemocracy Dies in Darkness

Justice Alito’s rosy view of pregnancy in America is fantasy

Leaky legal protections and economic penalties riddle the health-care and workplace landscapes

Abortion rights campaigners demonstrate Tuesday outside the federal courthouse in Tucson, Ariz. (Stringer/Reuters)
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Among the many shocking elements of the leaked draft Supreme Court opinion overturning Roe v. Wade, this one jumped out at me: the rosy picture of pregnancy painted by Justice Samuel Alito, who has never been pregnant. Alito lists a string of what he calls “modern developments” that lessen the financial toll exacted by pregnancy. “Federal and state laws ban discrimination on the basis of pregnancy,” he writes. “Leave for pregnancy and childbirth are now guaranteed by law in many cases,” and “costs of medical care associated with pregnancy are covered by insurance or government assistance.” The implication is that Roe has outlived any role it once played in improving women’s economic security.

But anyone who has been pregnant — or cares to understand — knows that the reality in the United States is not rosy at all. At best, pregnant Americans must navigate a patchwork of leaky protections, a labyrinth of financial costs and penalties, and a health-care landscape that threatens the lives of the most vulnerable.

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Let’s start with Alito’s claim that pregnant workers have nothing to fear because federal and state laws ban pregnancy discrimination. His claim that workplace protections insulate pregnant employees from harm is particularly rich given the origins of the 1978 Pregnancy Discrimination Act, a rebuke to a 1976 Supreme Court decision, General Electric Co. v. Gilbert, which wrongly concluded that workers could be penalized for being pregnant.

Fortunately, Congress stepped in to right that wrong, but there remains a persistent gap between the letter of the law and the lived experience of pregnant workers. That’s certainly been our experience at the ACLU Women’s Rights Project, where we routinely represent women fired or forced into unpaid leave for being pregnant. These women aren’t anomalies. In the nearly half-century since 1978, pregnant workers have been continually denied reasonable accommodations they need to keep working safely or are outright fired for being pregnant, leading to more than 50,000 charges of pregnancy discrimination in the last decade alone. Because most incidents of discrimination aren’t reported, that number represents a fraction of the problem. These trends persist even though women now make up a majority of the workforce, and 85 percent of female workers will become pregnant at some point, with most continuing to work through their pregnancies — and beyond.

Over the past 30 years, conservative Supreme Court nominees testified about abortion rights during their Senate confirmation hearings. (Video: JM Rieger/The Washington Post)

That brings us to Alito’s next assertion. He writes that “leave for pregnancy and childbirth are now guaranteed by law in many cases.” The Family and Medical Leave Act guarantees 12 weeks of leave, but that leave is unpaid. Going three months without pay is a luxury few new parents can afford. And even that minimal guarantee covers only those who work for large employers and have at least a full year on the job, meaning roughly half the workforce is left out. Paid leave is hard to come by; just 1 in 4 workers has access to paid family leave in the United States.

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Alito’s draft opinion also peddles the notion that “the costs of medical care associated with pregnancy are covered by insurance or government assistance.” Most of the states likely to ban abortion, should Roe be overturned, are the same states that have refused to expand Medicaid coverage. And even those families lucky enough to have employer-based health coverage can end up facing thousands in medical bills for childbirth: For a birth free of complications, a worker with employer-based insurance can expect to pay $4,500 on average in out-of-pocket costs.

That’s assuming, of course, that they make it out of pregnancy alive. The United States has the dubious distinction of having the worst maternal mortality rate among wealthy countries. And appalling racial disparities in resources and health care make pregnancy more life-threatening for some than for others. In Mississippi — the state whose abortion ban is currently before the Supreme Court in a case that the Alito draft addresses — the maternal mortality rate for Black women is nearly three times higher than that for White women. And in Washington, where the Supreme Court sits, Black people make up just 45 percent of the population but 90 percent of pregnancy-related deaths.

Despite the fact that he has two children of his own, Alito displays astonishing ignorance about what many pregnant people and their families face in the wealthiest nation in the world, a nation that spends just $500 per child on early-childhood care — less than 2 percent of what Norway does. The consequences of that ignorance will be the difference between life and death, or profound suffering and unnecessary hardship, for so many.

I, for one, would love to live in the country that the draft opinion describes, where pregnancy is physically and economically safe, valued and supported. Unfortunately, we live in this one — where even a wanted pregnancy and birth can be among the most economically disruptive experiences most people can expect to face. In this America, reproductive autonomy remains a pillar of women’s equality and livelihoods. Until Alito has lived in our house, he has no business knocking down its walls.

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