Unfair protection

March 22, 1991

A unanimous Supreme Court decision on any subject is impressive, and the ruling this week overturning "fetal protection" policies is a significant victory for equal rights -- and a sign that this court may not be as unfriendly to privacy rights as abortion opponents have hoped.

The defendant in this case was Johnson Controls Inc., a Milwaukee-based battery manufacturer that excluded women from jobs which exposed them to high levels of lead unless they offered medical proof that they were infertile. Among the plaintiffs was a woman who chose to be sterilized in order to keep her higher-paying job and a man who wanted to father a child but was denied a leave of absence in order to lower his lead level. Clearly, women who plan to bear children have a stake in being protected from toxic substances that could harm fetuses. But the obvious problem with policies that apply only to one sex is that, in practice, they are discriminatory -- closing professional doors and diminishing earning capability solely on the basis of gender. All workers, not just women, need protection from toxic substances, especially if they plan to have children. But until recently there have been woefully few studies of the effects of toxic substances on male reproductive systems.

Although the decision was unanimous, only five justices joined in the strongly worded majority opinion written by Justice Harry A. Blackmun. One of those justices was David Souter, the newest appointee to the court, and the man whose vote could determine the outcome of a direct challenge to Roe vs. Wade, the 1973 decision legalizing abortion. "Decisions about the welfare of future children," the new opinion states, "must be left to the parents who conceive, bear, support and raise them rather than to the employers who hire those parents." That sounds to us like a ringing endorsement of reproductive freedom, the same important freedom affirmed in Roe vs. Wade.

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